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POPLA Appeal - Euro Car Parks Church Farm, Stockton Heath (Warrington)
gillh2
Posts: 6 Forumite
Hi, I've been reading all the advice on the forums over the last week and have drafted my POPLA appeal. I haven't done everything right so far - I came to the boards after my first appeal to the PPC in which I admitted driving and I did try ringing them to negotiate which I've since seen is a big no-no. However, all being as it is, I wonder if I could ask for peoples' help on my draft appeal? I've tried to take all the advice and templates on board but £90 is a scary amount so I'd appreciate anyone who's experienced looking it over.
I've made some bits up after reading up on the subject such as point 6 - lack of consideration and point 8 - no desire to service any contract. Are these valid? If not, would they actually be detrimental? I'm of a mind to include them anyway if not just in case! I also don't know if point 1 is worth it - I would still have overstayed but can the notice get cancelled on a technicality like this?
Thanks in advance for any help.
Gill
POPLA REF xxx-xxx-x-xxx
Parking Charge Notice Number: xxxxxxxxxxx
Issued 09/04/15 22:14
Vehicle Registration Mark: xx xx xxx
I would like to appeal and have voided or cancelled the above parking charge notice, issued by Euro Car Parks, on the following grounds:
1. Inaccuracy of the notice
2. ANPR Accuracy and compliance
3. Non compliant signage
4. Euro Car Parks has no contractual authority
5. No contract was entered into
6. Lack of consideration of contract
7. Unfair terms of contract
8. Euro Car Parks showed no desire to service any contract
9. The charge is punitive
1 Inaccuracy of the notice
The original notice I received incorrectly stated that my vehicle had 'exceeded the maximum parking time period permitted...by 42 minutes'. This is incorrect, since it includes time after 10pm which is outside of the operational hours. The inaccuracy of this data calls into question the entire validity of the parking charge notice.
2 ANPR Accuracy and compliance
Euro Car Parks uses cameras to 'capture images of vehicles entering and leaving the car park'. The BPA AOS Code of Practice 21.3 states that any data captured by ANPR systems must be accurate, securely held and cannot be tampered with.
I have seen no evidence that the system Euro Car Parks uses is accurate. The images included in the parking charge notice are not time stamped. The time looks to have been added into the notice document separately. If this has been added manually there is no guarantee it has been transcribed accurately. If this is imported from a database there is no indication that the time given reflected the local time accurately.
I would like Euro Car Parks to prove that data generated by their ANPR system is accurate, securely held and cannot be tampered with. If they cannot do so I believe they should never have issued the notice and it should be void.
Furthermore, the BPA AOS Code of Practice 21.4 states that operators must '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.'
The ICO's In the picture: A data protection code of practice for surveillance cameras and personal information Version 1.1 includes the following statements:
7.1 If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. This is particularly important given the significant amounts of information an ANPR system can collect.
8. Is there a regular check that the date and time stamp recorded on images is accurate (for example, when the UK switches between summer and winter time)?
Has a regular maintenance regime been set up to ensure that the system continues to produce high quality information?
I would like Euro Car Parks to prove that they are keeping to the BPA's Code of Practice through following this guidance from the ICO. I would like them to show a privacy impact assessment dating from prior to the date of issue of the parking charge notice. I would like them to show maintenance records for the ANPR system they use. If they are unable to do this they will be in breach of the Code and I would like the Parking Charge Notice to be cancelled.
3 Non compliant signage
The BPA AOS Code of Practice 18 sets out the obligations Euro Car Parks has to display signs at the entrance, and that signs 'must be conspicuous and legible'.
The code also states that 'In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.'
The onus is clearly on Euro Car Parks to make their signage clear enough that a driver cannot fail to see it, not on the driver to go looking for it. Contrary to this, Euro Car Parks gave as a reason for rejecting my appeal that “It is the drivers' responsibility to check all signage and make sure it is understood and adhered to”.
The layout of this car park is unusual in that the angle of the parking bays isn't parallel or 90 degrees to the direction of approach. This means that any driver approaching who is unfamiliar with the layout is busy processing this information. In order to stay true to the spirit of the BPA AOS Code of Practice I would expect Euro Car Parks to display more signs than the bare minimum because any signage is having to compete for the drivers' attention against these conditions.
Neither myself of my passenger saw any signs. Euro Car Parks has sent me pictures of three signs – two displaying the terms and conditions of parking and one highlighting the new operating hours. However these signs are taken close up, with no wider picture to show the context in which they are displayed:
• The sign highlighting the new operating hours has no specific location mentioned on it.
• The pictures were taken early afternoon in August 2014. Euro Car Parks have shown me nothing to indicate that these signs would be adequately lit and legible at night in April 2015.
• It is unclear which of these signs, if any, is displayed at the entrance to the car park. I did not see any. I do not live near this car park and have been unable to visit to verify if there is any signage at the entrance, however I have taken a screenshot from Google Streetview of the entrance to the car park and cannot see any evidence of signage.
I would like Euro Car Parks to prove that at the time I parked these signs were 'conspicuous and legible' and that one was placed at the entrance to the car park.
4. Euro Car Parks has no contractual authority
I have seen no evidence that Euro Car Parks has the written authorisation of the landowner (or their appointed agent) to operate. The BPA AOS Code of Practice 7.1 and 7.3 set out the terms this authorisation must include.
I would like Euro Car parks to submit a copy of this authorisation to prove compliance. If they are unable to do so, they should never have issued the notice and it should be void.
5. No contract was entered into
Under UK contract law, a contract can only be considered to have been entered into if an offer has been made and agreement has been reached. As I have stated above, I did not see any signs to acquaint myself with the offer and accept or agree to the terms. Therefore no contract can be said to have been entered into and I cannot be bound by any terms of a contract.
Euro Car Parks could consider me to be guilty of trespassing and claim damages, however since the car park is free they have suffered no economic loss through my overstay. They would only therefore be entitled to nominal damages, not £90.
6 Lack of consideration of contract
Under UK contract law, a contract must include the consideration unless it is a deed. The consideration must have real economic value.
In this instance I believe the consideration would be the ability for me to park. I would suggest that this does not have economic value. My local shopping car parks are in Horwich which are free at all times. I also regularly park in Bolton and Bury centre shopping car parks. Both of these towns offer free parking after 6pm without time restriction. The Church Farm parking area Euro Car Parks is itself free. I do not therefore believe that the parking terms constitute a binding contract and as such the parking charge notice should never have been issued and is void.
7 Unfair terms of contract
Were any contract in existence, it would be unfair in accordance with the Unfair Terms in Consumer Contracts Regulations 1999 Act.
Section 5 of this act states that:
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
Since the terms are printed on the sign they are drafted in advance and not individually negotiated. I believe the obligation of a requirement for me to pay £90 represents a significant imbalance against the free parking provided by Euro Car Parks.
Schedule 2 of the Unfair Terms in Consumer Contracts Regulations 1999 Act sets out an 'Indicative and non-exhaustive list of terms which may be regarded as unfair'. This includes:
1e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
£90 is disproportionate on many levels – to the value of the free parking offered, to the value Euro Car Parks charges for parking at car parks where it does make a charge and to the loss caused by the overstay.
i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;
Again, since I did not see any signage relating to the terms I had no opportunity of becoming acquainted with them.
Accordingly, as per section 8 of the above act, were any contract formed, it would not be binding on me and I would like the parking charge notice cancelled.
8 Euro Car Parks showed no desire to service any contract
After receiving the rejection of my appeal, I rang Euro Car Parks with the intention of coming to some arrangement. Whilst I didn't agree that they should have issued any parking charge notice, to save myself further inconvenience, I was willing to pay some amount to them. They were completely unwilling to countenance this. During this call, I asked them to justify the £90 charge. At this point I was told 'We don't have time for that!' (Exact words) and also something like “Pay the £50, now or go to POPLA. Those are your options.” (I cannot be sure this is exact but the meaning was the same). I neglected to record this conversation and I have no proof except that I rang on Tuesday 26th May at around 1pm and spoke first to a lady who answered the phone and then the lady I quoted who was called Verity. Her manner was very abrupt and rude.
I cannot find any instance of law to quote, however I believe as a consumer if I have entered into a 'contract' with a firm, they should at least be prepared to talk to me about the terms of that 'contract'. I believe their unwillingness to deal with me infringes my basic rights as a consumer and renders any 'contract' worthless.
9 The charge is punitive
The BPA AOS Code of Practice 19.6 states 'If your parking charge is based upon a contractually agreed sum, that charge should not be punitive or unreasonable'. I find £90 to be both punitive and unreasonable.
It is punitive: The charge doesn't represent the actual losses suffered by Euro Car Parks for an overstay at this free car park.
It is unreasonable: Where Euro Car Parks does charge for parking, even in Manchester central car parks they charge a maximum of £3 for up to an hour. Charging 30 times that amount without any justification is unreasonable.
Given that Euro Car Parks is failing to adhere to the Code I request that you cancel the parking charge notice.
Thank you for considering my appeal. I hope that you will find in my favour and ask Euro Car Parks to void or cancel the notice forthwith.
I've made some bits up after reading up on the subject such as point 6 - lack of consideration and point 8 - no desire to service any contract. Are these valid? If not, would they actually be detrimental? I'm of a mind to include them anyway if not just in case! I also don't know if point 1 is worth it - I would still have overstayed but can the notice get cancelled on a technicality like this?
Thanks in advance for any help.
Gill
POPLA REF xxx-xxx-x-xxx
Parking Charge Notice Number: xxxxxxxxxxx
Issued 09/04/15 22:14
Vehicle Registration Mark: xx xx xxx
I would like to appeal and have voided or cancelled the above parking charge notice, issued by Euro Car Parks, on the following grounds:
1. Inaccuracy of the notice
2. ANPR Accuracy and compliance
3. Non compliant signage
4. Euro Car Parks has no contractual authority
5. No contract was entered into
6. Lack of consideration of contract
7. Unfair terms of contract
8. Euro Car Parks showed no desire to service any contract
9. The charge is punitive
1 Inaccuracy of the notice
The original notice I received incorrectly stated that my vehicle had 'exceeded the maximum parking time period permitted...by 42 minutes'. This is incorrect, since it includes time after 10pm which is outside of the operational hours. The inaccuracy of this data calls into question the entire validity of the parking charge notice.
2 ANPR Accuracy and compliance
Euro Car Parks uses cameras to 'capture images of vehicles entering and leaving the car park'. The BPA AOS Code of Practice 21.3 states that any data captured by ANPR systems must be accurate, securely held and cannot be tampered with.
I have seen no evidence that the system Euro Car Parks uses is accurate. The images included in the parking charge notice are not time stamped. The time looks to have been added into the notice document separately. If this has been added manually there is no guarantee it has been transcribed accurately. If this is imported from a database there is no indication that the time given reflected the local time accurately.
I would like Euro Car Parks to prove that data generated by their ANPR system is accurate, securely held and cannot be tampered with. If they cannot do so I believe they should never have issued the notice and it should be void.
Furthermore, the BPA AOS Code of Practice 21.4 states that operators must '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.'
The ICO's In the picture: A data protection code of practice for surveillance cameras and personal information Version 1.1 includes the following statements:
7.1 If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. This is particularly important given the significant amounts of information an ANPR system can collect.
8. Is there a regular check that the date and time stamp recorded on images is accurate (for example, when the UK switches between summer and winter time)?
Has a regular maintenance regime been set up to ensure that the system continues to produce high quality information?
I would like Euro Car Parks to prove that they are keeping to the BPA's Code of Practice through following this guidance from the ICO. I would like them to show a privacy impact assessment dating from prior to the date of issue of the parking charge notice. I would like them to show maintenance records for the ANPR system they use. If they are unable to do this they will be in breach of the Code and I would like the Parking Charge Notice to be cancelled.
3 Non compliant signage
The BPA AOS Code of Practice 18 sets out the obligations Euro Car Parks has to display signs at the entrance, and that signs 'must be conspicuous and legible'.
The code also states that 'In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.'
The onus is clearly on Euro Car Parks to make their signage clear enough that a driver cannot fail to see it, not on the driver to go looking for it. Contrary to this, Euro Car Parks gave as a reason for rejecting my appeal that “It is the drivers' responsibility to check all signage and make sure it is understood and adhered to”.
The layout of this car park is unusual in that the angle of the parking bays isn't parallel or 90 degrees to the direction of approach. This means that any driver approaching who is unfamiliar with the layout is busy processing this information. In order to stay true to the spirit of the BPA AOS Code of Practice I would expect Euro Car Parks to display more signs than the bare minimum because any signage is having to compete for the drivers' attention against these conditions.
Neither myself of my passenger saw any signs. Euro Car Parks has sent me pictures of three signs – two displaying the terms and conditions of parking and one highlighting the new operating hours. However these signs are taken close up, with no wider picture to show the context in which they are displayed:
• The sign highlighting the new operating hours has no specific location mentioned on it.
• The pictures were taken early afternoon in August 2014. Euro Car Parks have shown me nothing to indicate that these signs would be adequately lit and legible at night in April 2015.
• It is unclear which of these signs, if any, is displayed at the entrance to the car park. I did not see any. I do not live near this car park and have been unable to visit to verify if there is any signage at the entrance, however I have taken a screenshot from Google Streetview of the entrance to the car park and cannot see any evidence of signage.
I would like Euro Car Parks to prove that at the time I parked these signs were 'conspicuous and legible' and that one was placed at the entrance to the car park.
4. Euro Car Parks has no contractual authority
I have seen no evidence that Euro Car Parks has the written authorisation of the landowner (or their appointed agent) to operate. The BPA AOS Code of Practice 7.1 and 7.3 set out the terms this authorisation must include.
I would like Euro Car parks to submit a copy of this authorisation to prove compliance. If they are unable to do so, they should never have issued the notice and it should be void.
5. No contract was entered into
Under UK contract law, a contract can only be considered to have been entered into if an offer has been made and agreement has been reached. As I have stated above, I did not see any signs to acquaint myself with the offer and accept or agree to the terms. Therefore no contract can be said to have been entered into and I cannot be bound by any terms of a contract.
Euro Car Parks could consider me to be guilty of trespassing and claim damages, however since the car park is free they have suffered no economic loss through my overstay. They would only therefore be entitled to nominal damages, not £90.
6 Lack of consideration of contract
Under UK contract law, a contract must include the consideration unless it is a deed. The consideration must have real economic value.
In this instance I believe the consideration would be the ability for me to park. I would suggest that this does not have economic value. My local shopping car parks are in Horwich which are free at all times. I also regularly park in Bolton and Bury centre shopping car parks. Both of these towns offer free parking after 6pm without time restriction. The Church Farm parking area Euro Car Parks is itself free. I do not therefore believe that the parking terms constitute a binding contract and as such the parking charge notice should never have been issued and is void.
7 Unfair terms of contract
Were any contract in existence, it would be unfair in accordance with the Unfair Terms in Consumer Contracts Regulations 1999 Act.
Section 5 of this act states that:
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
Since the terms are printed on the sign they are drafted in advance and not individually negotiated. I believe the obligation of a requirement for me to pay £90 represents a significant imbalance against the free parking provided by Euro Car Parks.
Schedule 2 of the Unfair Terms in Consumer Contracts Regulations 1999 Act sets out an 'Indicative and non-exhaustive list of terms which may be regarded as unfair'. This includes:
1e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
£90 is disproportionate on many levels – to the value of the free parking offered, to the value Euro Car Parks charges for parking at car parks where it does make a charge and to the loss caused by the overstay.
i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;
Again, since I did not see any signage relating to the terms I had no opportunity of becoming acquainted with them.
Accordingly, as per section 8 of the above act, were any contract formed, it would not be binding on me and I would like the parking charge notice cancelled.
8 Euro Car Parks showed no desire to service any contract
After receiving the rejection of my appeal, I rang Euro Car Parks with the intention of coming to some arrangement. Whilst I didn't agree that they should have issued any parking charge notice, to save myself further inconvenience, I was willing to pay some amount to them. They were completely unwilling to countenance this. During this call, I asked them to justify the £90 charge. At this point I was told 'We don't have time for that!' (Exact words) and also something like “Pay the £50, now or go to POPLA. Those are your options.” (I cannot be sure this is exact but the meaning was the same). I neglected to record this conversation and I have no proof except that I rang on Tuesday 26th May at around 1pm and spoke first to a lady who answered the phone and then the lady I quoted who was called Verity. Her manner was very abrupt and rude.
I cannot find any instance of law to quote, however I believe as a consumer if I have entered into a 'contract' with a firm, they should at least be prepared to talk to me about the terms of that 'contract'. I believe their unwillingness to deal with me infringes my basic rights as a consumer and renders any 'contract' worthless.
9 The charge is punitive
The BPA AOS Code of Practice 19.6 states 'If your parking charge is based upon a contractually agreed sum, that charge should not be punitive or unreasonable'. I find £90 to be both punitive and unreasonable.
It is punitive: The charge doesn't represent the actual losses suffered by Euro Car Parks for an overstay at this free car park.
It is unreasonable: Where Euro Car Parks does charge for parking, even in Manchester central car parks they charge a maximum of £3 for up to an hour. Charging 30 times that amount without any justification is unreasonable.
Given that Euro Car Parks is failing to adhere to the Code I request that you cancel the parking charge notice.
Thank you for considering my appeal. I hope that you will find in my favour and ask Euro Car Parks to void or cancel the notice forthwith.
0
Comments
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Much simpler to put first 'not a genuine pre-estimate of loss' which I am not seeing in your appeal. Also include the words I added to the Newbies thread post #3 yesterday (the blue words) about your case being stayed pending the Beavis case if there are no other grounds upon which POPLA can find in your favour.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 -
Thanks Coupon-mad, really appreciate the advice. I didn't include GPEOL because I thought the latest advice was not to in light of Beavis v Parking Eye. I shall include it, along with the text you refer to, as my opening point.0
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Hi! Got my POPLA number from these guys today. Any chance you won? And if so what did you win on? Thanks
0 -
Hi Grainnemac, sorry for delayed reply, I've just started a new job and it's been quite intense! I made the changes as suggested and I won because they didn't bother to contest it. From what I read at the time that seems fairly standard!
Best of luck in your case 0 -
Sounds good!
I submitted mine yesterday with a little help from the threads so we'll see how it goes!0
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