Hello, I have prepared a POPLA appeal - draft below. Please let me know if I should change anything.
POPLA VerificationCode: XXXX
VehicleRegistration: XXXX
Euro Car Parks PCNNo: XXXX
Date: 27thNovember 2023
Dear POPLA Adjudicator,
I am the registered hirerof vehicle XXX and I am appealing a parking charge received from UKPC.I contend that I am not liable for the parking charge on the grounds listedbelow and request that they are all considered.
1. No evidence to show that the APNR system is reliable
2. Failure to provide the contract to evidence that Euro CarParks has any Standing or Authority to pursue charges or form contracts (LocusStandii)
3. The signage was non-compliant with the BPA CoP
4. The ANPR system is unreliable and neither synchronised noraccurate
5. Unlawful Penalty Charge
6. Reference to ParkingEye vs Beavis.
1. No evidence toshow that the APNR system is reliable.
This Operator is obliged to ensure their ANPRequipment is maintained as described in paragraph 21.3 of the British ParkingAssociation's Approved Operator Scheme Code of Practice. I require the Operatorto present records as to the dates and times of when the cameras at this carpark were checked, adjusted, calibrated, synchronised with the timer whichstamps the photos and generally maintained to ensure the accuracy of the datesand times of any ANPR images. This is important because the entirety of thecharge is founded on two images purporting to show the vehicle entering andexiting at specific times. It is vital that this Operator must produce evidencein response to these points and explain to POPLA how their system differs (ifat all) from the flawed ANPR system which was wholly responsible for the courtloss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case wasdismissed when the judge said the evidence form the Operator was 'fundamentallyflawed' as the synchronisation of the camera pictures with the timer had beencalled into question and the operator could not rebut the point.
Euro Car Parks has not provided any evidence toshow that their system is reliable, accurate or maintained. I request that youuphold my appeal based on this.
2. Failure to provide the contract to evidence that Euro CarParks has any Standing or Authority to pursue charges or form contracts (LocusStandii) For clarity, the BPA Code clearly states that Euro Car Parks has not provided the adjudicatorany evidence to show that they have authority to issue charges in line with theBPA Code. The Operators evidence fails to show any of the BPA requirements thenthe omissions must be interpreted in the way which favours the consumer. Irequest that you uphold my appeal on this point.
Euro Car Parks has not produced any evidence toshow that they have any legal right to issue charges on behalf of thelandowner. There is also no proof that the alleged signatory on behalf of thelandowner has ever seen the relevant contract or, indeed, is even an employeeof the landowner. It is my contention that this witness statement should bedisregarded as unreliable, not proving full BPA compliance and is notsufficient to prove that Euro Car Parks have the necessary legal standing atthis location to bring a claim in their own name nor to form any contractualrelationship between the landowner and motorists. I also refer to the fact thatthe “old” POPLA service ALWAYS found in favour of the appellant where the PPChad not proved that they had the authority of the landowner, in accordance withSection 7 of the BPA Code of Practice. Please note that this practice includeddisregarding any evidence not shown to an appellant, so the operator cannot addit now to consider. The Operator has not shown a full unredacted copy of thecontract that allows them to act (as detailed above).
“The written authorisation must also set out:
a the definition of the land on which you mayoperate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parkingcontrol and enforcement operations, including any restrictions on hours ofoperation
c any conditions or restrictions on the types ofvehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up andmaintaining signs
e the definition of the services provided by eachparty to the agreement”
3. The signage was non-compliant with the BPA CoP
The signage is, I believe, non-compliant. Thesigns are badly placed, full of overall small size and the barely legible sizeof the small print, the signs in this car park are very hard to read andunderstand. No where is it stated that an additional ticket must bepurchased after 8pm if you have already purchased a ticket.
Any photos supplied by Euro Car Parks to POPLA will nodoubt show the signs in daylight or with the misleading aid of a close upcamera & flash and the angle may well not show how high the signs are. Assuch, I require Euro Car Parks to state the height of each sign in theirresponse and to show contemporaneous photo evidence of these signs in the darkwithout the aid of flash photography. Unreadable signage breaches Appendix B ofthe BPA Code of Practice which states that terms on entrance signs must beclearly readable without a driver having to turn away from the road ahead. ANotice is not imported into the contract unless brought home so prominentlythat the party 'must' have known of it and agreed terms beforehand. Nothingabout this Operator's onerous inflated 'parking charges' was sufficientlyprominent and it is clear that the requirements for forming a contract (i.e.consideration flowing between the two parties, offer, acceptance and fairnessand transparency of terms offered in good faith) were not satisfied. I contend that the signs and any core parkingterms Euro Car Parks are relying upon were too small for any driver to see,read or understand or close enough to every ticket purchase machine. I requestthat POPLA check the Operator's evidence and signage map/photos on this point andcompare the signs to the BPA Code of Practice requirements. I contend that thesigns on this land (wording, position, clarity and frequency) do not comply andfail to properly warn/inform the driver of the terms and any consequences forbreach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 andWaltham Forest v Vine [CCRTF 98/1290/B2]
4. The ANPR system is unreliable and neither synchronised noraccurate In addition to showing their maintenance records,I require the Operator in this case to show evidence to rebut this point: Isuggest that in the case of the vehicle being in this car park, a local cameratook the image but a remote server added the time stamp. As the two aredisconnected by the internet and do not have a common "timesynchronisation system", there is no proof that the time stamp added isactually the exact time of the image. I contend that this ANPR"evidence" from this Operator in this car park is unreliable I putthis Operator to strict proof to the contrary. I also claim that the signs at the car park do notclearly tell drivers about this technology nor how the data captured by ANPRcameras will be used. This means the system does not operate in a reasonable,consistent and transparent manner. Unless the Operator can show documentaryevidence otherwise, then this BPA CoP breach would also point to a failure tocomply with the ICO terms of registration and a breach of the CPUTR 2008(claiming to comply with the BPA Code of Practice when I believe it is not thecase). This Operator is put to strict proof to the contrary. The charge is founded entirely on two photos ofthe vehicle entering/leaving the car park at specific times. I put Euro CarParks to provide strict proof that their ANPR system is not fundamentallyflawed because of known issues such as missing checks and maintenance of thetimer/cameras and the possibility of two visits being recorded as one. TheOperator's proof must show checks relating to the vehicle, not vague statementsabout any maintenance checks carried out at other times.
This Operator is obliged to ensure their ANPRequipment is maintained as described in paragraph 21.3 of the British ParkingAssociation's Approved Operator Scheme Code of Practice. I require the Operatorto present records as to the dates and times of when the cameras at this carpark were checked, adjusted, calibrated, synchronised with the timer whichstamps the photos and generally maintained to ensure the accuracy of the datesand times of any ANPR images. This is important because the entirety of the chargeis founded on two images purporting to show the vehicle entering and exiting atspecific times. It is vital that this Operator must produce evidence inresponse to these points and explain to POPLA how their system differs (if atall) from the flawed ANPR system which was wholly responsible for the courtloss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case wasdismissed when the judge said the evidence form the Operator was 'fundamentallyflawed' as the synchronisation of the camera pictures with the timer had beencalled into question and the operator could not rebut the point.
5. Unlawful Penalty Charge The operator could state the letter as an invoiceor request for monies, but chooses to use the wording “PARKING CHARGE NOTICE”in an attempt to be deemed an official parking fine similar to what the Policeand Council Wardens issue. The carpark in question charges £2.00 past 20:00pmuntil 08:00am. The £100 charge is punitive and not any representation of anyloss incurred.
Since there was no demonstrable loss/damage andyet a breach of contract has been alleged, it can only remain a fact that this'charge' is an attempt at extorting an unlawful charge to impersonate a parkingticket. This is similar to the decisions in several County Court cases such asExcel Parking Services v Hetherington-Jakeman (2008), also OB Services vThurlow(review, February 2011), ParkingEye v Smith (Manchester County CourtDecember2011) and UKCPS v Murphy (April 2012) .
Regards,
