ParkingEye Aldi Biggleswade PCN

NinjaSparky

4.Misuse of Automatic Number Plate Recognition (ANPR).

The signs fail to transparently warn drivers that ANPR is in use and what the data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the British Parking Association Code of Practice (CoP) 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 CoP 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. A symbol of a camera is not sufficient to inform the driver that this system is in place as this could easily be mistakenly taken as a sign that CCTV is in operation for security purposes. In addition the acronym ANPR is also not sufficient as no prior knowledge of the system can be assumed and the signage must be easily understandable. It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.

ParkingEye signs do not comply with these requirements because these car park signage failed notify the driver 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. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

legco.gov.hk/general/english/library/stay_informed_overseas_policy_updates/consumer_rights_act_2015.pdf

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

legislation.gov.uk/uksi/2008/1277/regulation/6/made

Misleading omissions: 6.1!A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,
(b)the commercial practice hides material information,
(c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

NinjaSparky

5.No Keeper Liability

a)POFA 2012, paragraph 9(2)(a) states;

“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

The Notice to Keeper did not 'specify the period of parking' to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park.

These times do not equate to any single evidenced period of parking. There is no evidence of a single period of parking or actual parking times and this cannot reasonably be assumed on the balance of probabilities, from two photos of a car in moving traffic, timed hours apart.

The Notice to Keeper additionally did not ‘specify the land on which it was parked’ to which it related. The notice simply states “Aldi Biggleswade”. There are two separate car parks at Aldi Biggleswade with separate entrances and exits, and multiple parking spaces around Aldi Biggleswade that are not part of these car parks. Nor can the relevant land be deduced from the cropped photographs displayed. The parking spaces could have easily been specified in the PCN as “Aldi Biggleswade, Bond Street North parking space, SG18 8AY” or “ Aldi Biggleswade, Bond Street South parking space, SG18 8AY”, this has not been done.

I put the operator to strict proof of the period of parking, that the times and dates shown on the photographs are correct and that the cameras were synced, adjusted and calibrated recently and to specify the the exact land on which it was parked, because this is a mandatory requirement for keeper liability also stated clearly in Schedule 4.

You cannot discount that the driver may have driven in and out on two separate occasions. There is ample evidence in the public domain that ANPR timings can mask other ordinary circumstances, such as two visits ('double dip', a well known phenomenon). In addition the ANPR system is inherently not 100% reliable as multiple factor can affect the performance of an ANPR system. In the following study done for Law Enforcement agencies in the UK the system was found to be only 93% accurate in a system specifically set up and calibrated for the test.

uhra.herts.ac.uk/bitstream/handle/2299/12527/The_effect_of_ANPR_Camera_Settings_on_System_Performance_RG_MR.pdf?sequence=2

As Aldi Biggleswade serves over 8,000 customer per week as per their statement to the Biggleswade town council, even ignoring customers who do not visit Aldi but still use the car park, that is over 560 cars per week, over 80 cars per day where the ANPR systems fails to register the car correctly

biggleswadetowncouncil.gov.uk/Biggleswade-TC/UserFiles/Files/OSCP%20150512.pdf

Here are just three examples of BPA member ANPR evidence failures, including a court loss and an ICO investigation:

parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html

parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

parking-prankster.blogspot.co.uk/2015/10/parkingeye-subject-to-data-protection.html

This 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in the following article:

britishparking.co.uk/Other-Advice#4

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.''

The BPA even mention this as an inherent problem with ANPR on their website;!

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

b)POFA 2012, paragraph 9(3) states;

“The notice must relate only to a single period of parking specified under sub-paragraph (2)(a)”

If the ANPR system has picked up two separate occasions then it would fail on the above ruling as two separate PCNs should be issued, assuming the vehicle in question had breached the contract terms, and not just the one that was sent to the Keepers address. I put the operator to strict proof that there was only one period of parking, because this is a mandatory requirement for keeper liability also stated clearly in Schedule 4.

Consequently, ParkingEye has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If ParkingEye should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.!

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and still not be lawfully able to be held liable, under Schedule 4:

transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;!

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (b) has given a notice to keeper in accordance with paragraph 9.''

The operator has failed to meet the second condition for keeper liability due to the flaws mentioned above in the NTK as it fails to comply with POFA 2012 paragraph 9.

Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012.

NinjaSparky

6.No Driver Liability

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.!

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.!

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.!

This finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:!
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

In Summary
I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice, previous POPLA appeals and case law (ParkingEye Ltd v Beavis & Vine v London Borough of Waltham Forest) undoubtedly supports my appeal, which I submit should now be determined in my favour.

NinjaSparky

So There it is, let me know what you guys think. It's 4am, I'm going to bed

Coupon-mad

Nice long appeal.

Love this addition!


''For someone to read the sign at its best viewing distance they would have to crash their car into the pole that the sign is mounted on and remove the cars roof.''

https://comparativegeometrics.wordpress.com/2014/07/02/values-for-driver-eye-height/

http://imgur.com/hkJ3C3b


:T


The only picture I would think about removing would be this one, as it arguably supports their case and is quite close to the entrance, and visible:

http://imgur.com/bqfn9yt

NinjaSparky

Thanks Coupon-mad

I've taken it out and altered the relative text.

I'll be uploading it soon to the POPLA site, wish me luck. I'll let you guys know how it goes

NinjaSparky

So I've received notification from Popla that ParkingEye have submitted their evidence pack...

I have not received any originals yet however I can access all the documents on the Popla website. It's a 50 page monstrosity without rhyme or reason. They have submitted the document twice forcing me to go through both with a fine toothed comb to ensure that they are the same.

In addition they have submitted some of the photographs and webpages from my original appeal, including the "Parking Prankster" articles about the unreliability of ANPR. But they have made no comment about these webpages or photos stating why they have included them. It's a mess but gives me plenty of ammunition.

So some quick questions.

1. Do I copy ParkingEye into the email that I send to Popla?
2. Do I write my rebuttal as an email or as a PDF attachment to the email? Or Both?
3. I want to keep it concise but there is so much I need to refute, how much is too much? I'm at 3 pages already and I've only just gotten started.
4. What do I type into the tiny 2000 letter space on the Popla appeals website?

Thanks

NinjaSparky

When I get a chance I'll upload the Evidence pack, I just need to edit out all the personal details.