POPLA Appeal - Euro Car Park

safeqaz

Hi All,

I received a fine from Euro Car Park as i must of forgot to enter the reg into the keypad which allows me to park at the gym. I appealed based on Puregyms advice to provide membership information but they did not care and rejected my appeal. Now i have a chance to appeal with POPLA and have drafted the below using the forum :-

Appeal re POPLA Code: [XXX] v Euro Car Parks Ltd

Vehicle Registration: [XXX]

POPLA ref: [XXX]

I, the registered keeper of this vehicle, received a letter dated 15/09/2021 active as a notice to the registered keeper. My appeal to the operator – Euro Car Parks Ltd – was submitted and acknowledged on [21/09/2021] but subsequently rejected by a letter dated [19/10/2021]. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1) Authority to Issue Tickets – No Evidence of Landowner Authority

2) Automatic Number Plate Recognition is unreliable

3) No legitimate interest in enforcing a charge

4) EuroCarPark Signage – Non compliance BPA

5) Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

6) ANPR Misuse : BPA Code of Practice – non-compliance

7) No Planning Permission from Essex County Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

 

 

   1)               Authority to Issue Tickets – No Evidence of Landowner Authority

 

EuroCarParks (hereafter named as operator) is put to strict proof of full compliance with the BPA Code of Practice. As this operator does not have proprietary interest in the land then I require that they produce copy of the contract with the landowner. Operator have not provided me with their contract with the landowner & Pure Gym (leaseholder). As if a ‘genuine customer’ gets ticketed then this should be cancelled. After all, the reason a land owner employs a parking company is to stop non-customers abusing the car park – and not to deter genuine customers from using the site. I have provided evidence that I am a ‘genuine customer ‘to the operator however they have not taken this into account.

 

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

 

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

 

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

 

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

 

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

 

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

 

7.3 The written authorisation must also set out:

 

a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

 

b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

 

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

 

d. who has the responsibility for putting up and maintaining signs

 

e. the definition of the services provided by each party to the agreement

 

 

2)               Automatic Number Plate Recognition is unreliable

 

The operator have also failed to show any evidence whatsoever of a reliable ANPR system. The system is unreliable in its event logging on any objective basis. The car park only has one entrance and one exit and the ANPR at the entrance is front facing therefore there is only one picture.

This site operates Automatic Number Plate Recognition (ANPR) cameras, which capture vehicles entering and exiting the site to calculate the time a vehicle has remained in each location, to establish, which area of the site, the vehicle parked. The burden of proof begins with the operator to show it issued the PCN correctly by providing ANPR images that support its version of events. The operator has not provided ANPR images from the date of the contravention or provide further ANPR records to show the vehicles movements throughout the site on the date of the contravention to show its reliability.  I would also like to again point out that there is no signage informing a potential customer that the carpark is ANPR controlled until after entering the site.

3)               No legitimate interest in enforcing a charge 

The operatory have failed to address the issue of any legitimate interest in enforcing a charge. In the case where a car was parked in a permit car park with permission of the principal (e.g. the landowner) then it could be argued that this overrides the contract with the parking company. The leaseholder gives me permission to park in the car park by entering the registration into the terminal. The registration was added into the terminal and it is upto the operator to provide proof the terminal works 100% of the time. Merely providing a list of registration numbers doesn’t prove it works 100% of the time. Operator has not provided proof that the terminal has been successfully validated/verification and can cope up to recording a certain amount of registration plates per hour.

One of the key points from the ParkingEye vs Beavis case was that the charge was necessary to deter overstaying; if they did not issue penalties then the car park would be unfairly used. The flip side of this is that if there were no legitimate interest, then the charge would be an unenforceable penalty an example here is entering an incorrect VRN into a terminal.

 

4)               EuroCarPark Signage – Non compliance BPA

 

BPA’s Code of Practice (18.2) states:

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

BPA’s Code of Practice (18.3) states: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The signage does not comply with the BPA requirements as it cannot be read by drivers. A driver entering the car park cannot see a sign on top left as this is a blind spot for any driver. Pictures can be seen attached, it is impossible for a driver to see the hidden sign which is on the top left as indicated below in Pic 2.

Pic 1 shows the entrance to the car park and no sign is visible.

I could not take a picture of the sign if I’m facing straight at the entrance and hence to angle my self to show the sign as seen in pic 2.

 

Pic 1

 

Pic 2

5)               Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

 The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The NtK in question contains two close-up license plate images. The time and date stamp and license plate have been inserted into the underneath (but not part of) the images. In addition, the images do not even show a vehicle, only an inserted image of the license plate and time stamp. Given the vast area that has neither been bounded nor marked as parking restricted, any vehicle passing by can be captured by the operators ANPR. As a result, these images cannot be used as the confirmation of the incident and therefore the operators claim is unauthorized.

I require the operator to produce evidence of the original images containing the required date and time stamp and images showing the car is actually parked in the location stated rather than just passing by. Given the unbounded nature of the venue, failing to produce such evidence would indicate the operator has been using ANPR to engage random license plate collection of all vehicles passing by and send NtK with the aim to extract penalty. Such action is no different from sticking parking tickets to all vehicles passing by.

Recent investigation by BBC  shows that the private parking industry is unregulated and does not have any accountability. Various cases show the industry’s priority is maximizing the penalty received from the motorist without due regard to the integrity of the evidence. Private parking operators are financially incentivized not to use the original image as evidence, but putting partial evidence together to generate a case biased towards generating a penalty fee. Based on the fact above, I require the operator to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

 

6)               ANPR Misuse : BPA Code of Practice – non-compliance

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Operators signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

There is no information indicates that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices.

 

7)               No Planning Permission from Essex County Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

A search in Essex county Council planning database does not show any planning permission for the pole-mounted ANPR cameras for the Meadows Car Park Chelmsford, nor does it show any advertising consent for signage exceeding 0.3m2.

UK government guidance on advertisement requires:

“If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under. It is criminal offence to display an advertisement without consent.”

This clearly proves the operator has been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.

I request the operator to provide evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2 , prior to the date to which this appeal relates.

Any advice will be much appreciated.

Le_Kirk

safeqaz said:

Hi All,

I received a fine from Euro Car Park as i must of forgot to enter the reg into the keypad which allows me to park at the gym. I appealed based on Puregyms advice to provide membership information but they did not care and rejected my appeal. 

I haven't read through the whole appeal yet, just wanted to give you a heads up to check for silly mistakes like that highlighted.  It should be "must have forgotten".

Le_Kirk

The operator have also failed to show

Should be either: -

The operators have also failed to show

OR

The operator have has also failed to show

Also

The operatory have has failed to address the issue

Check all the way through for similar errors.

1505grandad

Also make sure you are using/quoting from the relevant BPA CoP  -  should be Version 8 dated January 2020

D_P_Dance

Have you complained to yoyr MP?

tboo

safeqaz said:

I received a fine from Euro Car Park as i must of forgot to enter the reg into the keypad which allows me to park at the gym. I appealed based on Puregyms advice to provide membership information but they did not care and rejected my appeal.

Any advice will be much appreciated.

So go back and demand they cancel it directly themselves. otherwise, go to another gym.

No, it is not a fine.

and as DD always states, complain to your MP.

Coupon-mad

Yep, don't do POPLA until you have tried asking the Gym Manager to email the PPC to cancel the PCN.  Try again!  Absolutely exhaust that effort and make yourself a pain tat the gym until they agree to email their contractor.

That comes waaay before POPLA as you can't do it the other way round.

Why are you assuming this was your fault?

Why haven't you considered that the signal to the keypad fluctuated or failed or that there may have been a VRM keying error?

If you do end up having to try POPLA that's what I would be suggesting you put the PPC to proof about, as well as showing an email from the Gym Manager saying he/she wants it cancelled (get them to at least do that for you).

safeqaz

This is the issue, PureGym simply don't want to email the PPC and are stating that all appeals need to go through EuroCarPark, but i will keep up the emails and send one every morning. 

Regarding the keypad i did make a point under " No legitimate interest" but i will further expand and add a paragraph solely for error in keypad.

Redx

It's not an appeal by PureGym , it's a customer complaint requiring them to tell their contractor to cancel the PCN forthwith !

Tell them that the victim appeal is already lodged by you with ECP , so stop telling you that ( treating you like a naive little kid ) and concentrate on helping an aggrieved paying loyal customer who has a legitimate complaint with their contractor , they are jointly and severally liable for the actions of any of their contractors , including cleaners , safety personnel , and parking companies. It's about what THEY can do !  Not about what they can't be *rsed to do !

It's the squeaky wheel that gets the oil

safeqaz

So emailed the gym again and got a response this time, they have confirmed they cannot contact anyone regarding parking fines as they do not have a contact.
I will therefore have to send in the appeal to POPLA as above.

Coupon-mad

If they don't have a contact then who signed the contract with the PPC?  They are either lying, or it needs escalating to the Managers who did sign this useless contract - or they need to tell you if the gym didn't actually sign it and name who did (a freeholder company who owns the land, maybe?).