PCN for Hillingdon Tube Station

mcbearington

Think this thread most closely resembles my case:
forums.moneysavingexpert.com/showthread.php?t=5757183

To reiterate, they've sent me a letter saying I've "failed to make payment upon exit from ANPR approved device controlled car park"

From reading this, is it reasonable to say I should appeal, with the blue text from the NEWBIES thread... as the keeper, and hope that it gets strung out?

Sorry if thats the wrong assumption, I'm trying very hard to figure it out, but unfortunately legalities really aren't a strong point of mine

also, a bunch of other railway related threads for anyone with a similar issue:
forums.moneysavingexpert.com/showthread.php?t=5722446
forums.moneysavingexpert.com/showthread.php?t=5718256
forums.moneysavingexpert.com/showthread.php?t=5777066
forums.moneysavingexpert.com/showthread.php?t=5757152

mcbearington

Half_way wrote: »

what are dues or say in the byelaws for each site?

The TfL byelaws are as follows - personally, I don't see anything that I'm in direct contravention of, but I may be wrong:

14. Traffic signs, causing obstructions and parking
(1) No person in charge of any motor vehicle, bicycle or other conveyance shall use
it on any part of the railway in contravention of any traffic sign.
(2) No person in charge of any vehicle, bicycle or other conveyance shall leave or
place any such vehicle, bicycle or conveyance in or on the railway:
(i) in such a manner as to cause an obstruction or hindrance to the Operator
or to persons using the railway; or
(ii) otherwise than in accordance with any reasonable direction of an
authorised person; or
(iii) where parking or waiting is prohibited.
(3) No person in charge of any motor vehicle, bicycle or other conveyance shall park
it on any part of the railway where charges are made for parking by the Operator
or an authorised person without paying the appropriate charge at the appropriate
time in accordance with instructions given by the Operator or an authorised
person at that place.
(4) The owner of any motor vehicle, bicycle or other conveyance used, left or placed
in breach of any of Byelaws 14(1) to 14(3) may be liable to pay a penalty as
displayed in that area.
(5) Without prejudice to Byelaw 14(4), any motor vehicle, bicycle or other
conveyance used, left or placed in breach of any of Byelaws 14(1) to 14(3) may
9
be clamped, removed and/or stored by or under the direction of the Operator or
an authorised person.
(6) The owner of the motor vehicle, bicycle or other conveyance shall be liable to the
Operator or authorised person for the costs incurred in clamping, removing and
storing it provided that there is in that area a notice advising that any vehicle
parked contrary to the Byelaws may be clamped, removed and stored by the
Operator or authorised person and that the costs incurred by the Operator or
authorised person for this may be recovered from the vehicle's owner.
(7) The power of clamping and removal referred to in Byelaw 14(5) shall not be
exercisable in any area where passenger parking is permitted unless there is on
display in that area a notice advising that any vehicle parked contrary to the
Byelaws may be clamped and/or removed by the Operator or authorised person.

Quentin

mcbearington wrote: »

From reading this, is it reasonable to say I should appeal, with the blue text from the NEWBIES thread... as the keeper, and hope that it gets strung out?

Yes send the blue text appeal just before the end of the appeal window

mcbearington

OK, thanks so much for all your helpful advice. Will let you all know how it goes.

Fruitcake

Hopefully by now you know that the owner, keeper, and driver are three different people as far as the law is concerned, and only the owner is liable under byelaws in this case.

Handbags-at-dawn

Fruitcake wrote: »

only the owner is liable under byelaws in this case.

I think you've forgotten about the driver's liability to conviction. Only the driver can commit the offence of parking in breach of the Byelaws, and only the driver can be prosecuted and fined by the magistrates.

As for owner liability: liable for what, exactly? Byelaw 14(4)(1) says the owner MAY be liable for a penalty, but as the DfT has clearly stated, only the Magistrates' Court can impose a penalty. Home-made PPC penalties are in reality offers of an opportunity to avoid prosecution, and even the DVLA and the BPA agree that the motorist can decline the offer and have the case heard in the magistrate's court. In other words, no-one, whether owner, keeper or driver, is legally obliged to pay a PPC penalty.

But anyway, NCP do not usually even try to pretend the charge is a penalty issued for breach of the Byelaws. They call it a parking charge for breach of contract. Where parking is subject to Byelaws (ie it's not relevant land within the meaning of Schedule 4 of POFA) then only the party to the contract - ie the driver - can be liable for its breach.

These are the reasons why you don't assist the PPC by identifying the driver. Even so, having said all that, if this should get to POPLA you should still put in the "they haven't identified the owner" argument - POPLA are not that hot on the law and it's often been the winning point!

mcbearington

thank you, that is a very comprehensive explanation and I feel a lot more confident in my position now.

mcbearington

Received an email from NCP on Feb 21. There are 28 days to appeal so best to wait until March 21 to appeal to Popla, or is it best to appeal sooner?

The text of what was received from NCP:

Thank you for your recent correspondence regarding the above notice number. We have considered the case carefully and have decided to reject your appeal on the following grounds;

The Automatic Number Plate Recognition service has recorded that the parking session for your vehicle was not paid for within the stipulated time.

This car park is an ANPR controlled site. The ANPR is in place to ensure that all motorists pay for the parking services that they have used. If a motorist fails to make a valid payment for their parking session, then we have no proof that payment was made for parking. Payments can be made on arrival, during the day, when returned to the vehicle or up until midnight am the next day. On this occasion no valid payment was made.
With regards to your withdrawal of consent to use your personal data in order to process this PCN (Section 10) unfortunately we are unable to grant your request. Please refer to SCHEDULE 2 of the Data Protection Act 1998 legislation which allows the continuation of data processing when the customer has entered into a contract with the supplier. When parking your vehicle within the car park you agreed to be bound to the contract displayed on the signage throughout the site.

SCHEDULE 2 Conditions relevant for purposes of the first principle: processing of any personal data

1The data subject has given his consent to the processing.

2The processing is necessary-

(a)for the performance of a contract to which the data subject is a party, or

(b)for the taking of steps at the request of the data subject with a view to entering into a contract.

Following the introduction of the Protection of Freedoms act 2012 on the 1st October 2012 lobbying by the BPA the Bill introduces a duty on the keeper to identify the driver providing a serviceable address when enquiries are made by the landowner or his agent. Failing this the keeper becomes liable for any parking charges due as a result of the breach of contract or trespass.
The Terms and Conditions of which our services are provided are clearly displayed on entrance and throughout our facilities, including the requirement for motorists to ensure valid payment is made within the stipulated time. We are confident that all signage and the PCN are compliant with all industry standards and to the British Parking Association's code of practice to which we subscribe..

So next step is to formulate a strategy. Sadly there is no "no keeper liability" get out as the PCN is titled as "ANPR Postal Notice to Keeper".

Please can I get some advice on the content of the appeal? So far as I can see, I can include the section about signage, as I'm not convinced that their signage is good enough. I'm not quite sure what else though.

I am thinking that (depending on signage), it could be a good plan to comment regarding the ANPR in the BPA Code of Practice (below, along with appendix F which relates to the use of ANPR). I would imagine the signage is unlikely to include (in legible writing anyway) an explanation for what the data captured by ANPR is used for. And specifically point 5 of the Appendix F section, because it mentions clear procedures and policies, which I do not believe has been followed, since the car WAS registered with the ANPR operator Dash, but there was a separate option that needed to be ticked to enable payments (from a card which was also already registered).

Is there anything else which I can add? I've scanned the NEWBIES thread, but I don't think any of the rest of it is applicable in this case. Many thanks in advance for your time everyone!

21 Automatic number plate recognition (ANPR)
General principles
21.1 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.
21.2 Quality checks: before you issue a parking charge
notice you must carry out a manual quality check of the
ANPR images to reduce errors and make sure that it is
appropriate to take action
21.3 You must keep any ANPR equipment you use in your
car parks in good working order. You need to make sure
the data you are collecting is accurate, securely held and
cannot be tampered with. The processes that you use
to manage your ANPR system may be audited by our
compliance team or our agents.
21.4 It is also a condition of the Code that, if you receive and
process vehicle or registered keeper data, you must:
!!!8226; be registered with the Information Commissioner
!!!8226; keep to the Data Protection Act
!!!8226; follow the DVLA requirements concerning the data
!!!8226; follow the guidelines from the Information
Commissioner!!!8217;s Office on the use of CCTV and
ANPR cameras, and on keeping and sharing personal
data such as vehicle registration marks.
21.5 We have an expectation that when Operators are using
cameras to manage parking, they will sign up to the
Surveillance Camera Commissioner!!!8217;s Code of Practice
and adopt the Guiding Principles which are detailed in
Appendix F of the Code.

APPENDIX F
1 !!!8226; What!!!8217;s your system for?
!!!8226; Do you review its use?
2 !!!8226; Have you carried out a privacy impact assessment?
!!!8226; Do you publish your privacy impact assessment?
3
!!!8226; Do you have signage in place to say surveillance is taking place?
!!!8226; Is there a published point of contact for people to raise queries or complaints with?
4 !!!8226; Who!!!8217;s responsible for your system?
!!!8226; Are your staff aware of their responsibilities?
5
!!!8226; Do you have clear policies and procedures in place?
!!!8226; Do your staff know what your policies and procedures are?
6 !!!8226; How long do you keep images/information?
!!!8226; How do you make sure images/information is deleted once they!!!8217;re no longer needed?
7
!!!8226; Do you have a policy on who has access to the stored information?
!!!8226; Do you have a policy on disclosure of information?
8 !!!8226; Do you follow any recognised operational or technical standards?
9 !!!8226; Do you make sure that the images captured by your system are caught securely?
!!!8226; Are only authorised people given access to the images?
10 !!!8226; Do you evaluate your system regularly to make sure it!!!8217;s still required?
!!!8226; Could there be an alternative solution to a surveillance camera system?
11
!!!8226; Can the criminal justice system use the images and information produced by your
surveillance camera system?
!!!8226; Do you have a policy on data storage, security and deletion?
12
!!!8226; Do you use any specialist technology such as ANPR, facial recognition, Body Worn
Video (BWV) or remotely operated vehicles (Drones)?
!!!8226; Do you have a policy in place to ensure that the information contained on your
database is accurate and up to date?

waamo

Just to be clear have NCP stated this is a byelaws offence and have they given you a POPLA code?

mcbearington

Yes, I have a POPLA code.