POPLA appeal draft for overstaying in Euro Car park

zatix

Hello,

I overstayed in an Euro Car park. I send below the draft I am planning to send to POPLA hoping that someone will give me some feedback.

I've seen that most of the successful claims involved the parking being in a store where you could complain to the owner. Mine wasn't.

Do I have realistic chances of having my complain accepted?

Many thanks.

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 £100 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 £100 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 £100 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.

Having received the Notice to Keeper in the post I had very little information so went and checked the signage and it seems that up to 1 hour parking at this time (rounded up to the closest amount from the alleged overstay of 15 minutes) would have cost £5 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £5 at the most. Parking Eye have not told me these details, despite it being a prerequisite of Schedule 4.

2. No contract between driver/Inadequate signage
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.


9.0 The Appeal

The parking charge of £100 is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge

The Respondent has produced insufficient evidence that my car was parked in breach of the stated terms and conditions and which is denied in any event.

The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.

I respectfully request that this appeal be allowed

In the event that POPLA is minded not to grant the appeal then, because the Respondent failed to provide any evidence of its entitlement to recover parking charges until this stage, it is requested that it be ordered that the Respondent be not allowed to recover any more than the originally claimed sum of £100

Yours faithfully,

XXXXX

Redx

move not a gpeol to the bottom of the list and renumber, then add the section in blue from the newbies thread below it

its always worth complaining to the landowner, if you dont ask, you dont get

zatix

Thanks for your reply.

How can I find out who is the landowner? I guess it will be Euro Car Park.

Here is an updated draft

Many thanks

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. No contract between driver/Inadequate signage
2. Flawed contract with landowner/Authority to issue PCNs
3. Unlawful penalty charge
4. ANPR (Automatic Number Plate Recognition) accuracy
5. ANPR usage
6. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
7. Non-compliant Notice to Keeper
8. Non genuine pre-estimate of loss


1. No contract between driver/Inadequate signage

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.

2. 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.


3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. Non genuine pre-estimate of loss

The amount of £100 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 £100 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 £100 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.

Having received the Notice to Keeper in the post I had very little information so went and checked the signage and it seems that up to 1 hour parking at this time (rounded up to the closest amount from the alleged overstay of 15 minutes) would have cost £5 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £5 at the most. Parking Eye have not told me these details, despite it being a prerequisite of Schedule 4.

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.

The Euro Car Parks Notice to Keeper alleges 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at the nearby shops and cafes if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.

The British Parking Association Code of Practice uses the word 'MUST'. This Operator 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.

I have not received any breakdown of how Euro Car Parks calculated there charge and so therefore require Euro Car Parks to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses. 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. The Operator 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.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Euro Car Parks cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some woolly statement that merely claims that charges were calculated to compensate Euro Car Parks for their “losses”.

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

The demand for a payment of £100 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.

In addition, the charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. The Euro Car Parks make reference to the Supreme Court’s decision in the ParkingEye vs Beavis case and how they believe it will have an impact on the outcome of this POPLA appeal. I would argue that Mr Beavis overstayed in a busy commercial car park which Parking Eye paid the Landowner £30,000 a year to farm.

The Euro Car Parks have no financial interest in this private residential car park, and there is no commercial justification for this charge.
If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case should it have any bearing on the outcome.


9. The Appeal

I challenge this 'PCN' as keeper of the car, on these main grounds:

a) The sum is disproportionate, does not represent a genuine pre-estimate of loss, nor is it a core price term.
b) The sum is extravagant and unconscionable and cannot be justified.
c) There is no evidence that you have any interest in the land. I will complain to the landowner about your aggressive ticketing.
d) Your 'Notice' fails to comply with the POFA so there can be no keeper liability.
e) I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract to pay this charge, which is a penalty.

Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 or cancel the charge. I will only appeal further if you offer POPLA, the only independent ADR with a scrutiny panel and trained Assessors. The 'IAS' offered by IPC firms will not be used, for well-documented reasons.

''Drop hands'' offer
The charge is baseless but I realise that you may have nominal postage costs. Equally, I have incurred costs for responding to your junk mail dressed up to mimic a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15 so this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days and I will not pursue you for my costs.

Breach of CCRs
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered nor expressly agreed. This 'contract' is cancelled and any obligations now end.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.


I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

Northlakes

The majority of this appeal looks fine but the last bit 9 is a cut and paste job from a PPC appeal and has no relevance at POPLA.

I can't see an appeal point about signage either. This also useful as writing on signage is always too small to read.

Do some searches about the landowner as often retail sites are on not-relevant land (council land and railways)and gives an additional winning point. This info can be found at the land registry (£3 I think) if you can't find it elsewhere e.g.commercial letting agents sites.
Location details are becoming far more important as a one size fits all approach becomes more difficult.

Umkomaas

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

This is the only bit from section 9 that should be left - ditch the remainder - then move the above paragraph to form the final statement in section 8 (Non GPEOL)