Britannia Parking online appeal proceedure refused access within 28 days period-

Redx

no , use the template


almost all parking companies routinely reject appeals


the NEWBIES FAQ sticky thread explains what the purpose of appealing is

Coupon-mad

Britannia cannot be described as robust, but they will probably push you to POPLA.

Umkomaas

Are Britannia Parking usually robust in rejecting appeals like this?

They're lily-livered, but still 'toughly' reject all appeals from the safety and security of their anonymous PO Box address, no identifier of the person rejecting the appeal, and a squiggle for a signature which wouldn't be amiss on a Premiership footballer's contract.

'Robust' isn't a term I'd use in any sentence describing a coward!

Brandon1

The appeal that I made has been rejected and BP have sent a PDF stating why they have rejected my appeal. I have been given a POPLA code.

It would be great if someone could cast an eye over the wording and their response and advise on the most effective way forward. Happy to do all of the leg work but ideally need some guidance on the best way to proceed and to avoid making any unnecessary mistakes.

I've read the newbies thread on POPLA appeals but it would be great if I can use the relevant helpful advice that others have posted previously.

If anyone can help that would be really appreciated.

Coupon-mad

No-one needs to see the template rejection letter, for that's all it is.

Best if you put together the templates from post #3 of the NEWBIES thread that you think apply, and we'll say of we think you've missed anything.

Brandon1

This is the basis of my appeal.(shortened to fit within character limit with links removed to avoid forum spamming guidelines). I have some images showing the signage used. Is it appropriate to post these here for others to comment on?

Appeal re POPLA Code: [XXX] v Britannia Parking Group Ltd

Vehicle Registration: [XXX]
POPLA ref: [XXX]

1) No Evidence of Period Parked. Evidence that the NtK does not meet PoFA 2012 requirements:

There is no evidence on the images printed on the NtK of a date and time of entry or departure of the vehicle.

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and
conditions before deciding against parking/entering into a contract.

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”. The NtK fom Britannia Parking Group Ltd simply claims that the vehicle “entered (xxx) at 10.23:04 and departed at 13:40:53”. At no stage does Britannia Parking Group Ltd explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

Britannia Parking Group Ltd uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the vast unbounded and unmarked area to calculate their length of stay.

Any vehicle passing by will be captured by ANPR. Britannia Parking Group Ltd, however, does not provide any direct evidence of its alleged violation. It is not in the remit of Britannia Parking Group Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking”, and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Britannia Parking Group Ltd are not able to definitively state the period of parking. I require Britannia Parking Group Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

Vehicle Images contained in PCN: BPA Code of Practice. Evidence of 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 images of the vehicle in question, one showing the front of the vehicle in question, whilst the other shows the rear. There are two close-up license plate images.

There are however no time and date stamps on the images provided on the NtK.

As a result, these images cannot be used as confirmation of the incident and the claim made by Britannia Parking Group Ltd is unsound..

I require Britannia Parking Group Ltd 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.

Recent investigation (27 Apr 2018) 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 incentivised not to use the original image as evidence, by submitting partial unauthenticated evidence together to generate a case biased towards generating a penalty fee.

Based on the fact above, I require Smart Parking Britannia Parking Group Ltd to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

2) Grace Period: BPA Code of Practice–Evidence of non-compliance

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:

“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

BPA’s Code of Practice (13.2) states that:

“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”

BPA’s Code of Practice (13.4) states that:

“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear that a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

It is therefore argued that the duration of visit in question (which Britannia Parking Ltd claim was [3hrs, 17mins and 47secs.) is not an unreasonable grace period, given:

a) The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non-compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
b) The lengthiness of Britannia Parking Ltd signage (in terms of word count) all written in tiny text the across of the sign (see image below).

All factors discussed above serve merely to increase the time taken to locate a sign indicating entrance and to locate a sign containing the terms and conditions.

3) No Evidence of Landowner Authority - the 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, I require that they produce an unredacted copy of the contract with the landowner.

The contract and any site agreement' or 'User Manual' setting out details including exemptions, such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge.

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 also authorised 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 Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Section 7 of the BPA Code of Practice defines the mandatory requirements and I ask that this operator provides 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.

4) The signs in this car park are positioned above what is considered a normal viewing height. The signage contains wording using lettering which is too small to be easily legible:

As the motorist enters the side road into what Britannia Parking Group Ltd would claim is the car parking facility in question, you will see from the photograph that motorist is not made aware by any clear and legible signage that can be read from the car drivers seating position to suggest that they are entering into such a facility.

There is also no evidence of signage at this point which should inform the motorist of the parking facility and the terms and conditions.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of any potential parking charges. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

There is a lot of wording on the signage which is not legible due the font size used and the height of the sign relative to a adult viewing height.

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5) Failure to comply with the data protection 'ICO Code of Practice':

Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). This represents a serious BPA CoP breach.

BPA’s Code of Practice (21.4) states that:

“It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:

a) Be registered with the Information Commissioner
b) Keep to the Data Protection Act
c) Follow the DVLA requirements concerning the data
d) Follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at:

The ICO’s CCTV Code of Practice makes the following assertions:

“This code also covers the use of camera related surveillance equipment including:

• Automatic Number Plate Recognition (ANPR);”

“the private sector is required to follow this code to meet its legal obligations under the DPA. Any organization using cameras to process personal data should
follow the recommendations of this code.”

“If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”

“You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective
solution, whether better solutions exist, what effect its use may have on individuals.”

“You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a
privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper
assessment.”

“If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its
introduction is proportionate and necessary.”

“Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies
how ANPR will address the problem, the privacy intrusions and the ways to minimize these intrusions, such as information being automatically deleted when
a car that has not contravened the restrictions leaves a car park.”

“Note:
... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon
fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.”

“A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a
lawful basis and is justified, necessary and proportionate.”

together to generate a case biased towards generating a penalty fee. Based on the
fact above, I require Smart Parking Ltd to produce strong evidence, audited by
qualified third party, to prove that its process is not biased to suit its financial
objective.

6) The ANPR System is Neither Reliable nor Accurate:

The NtK submitted by Britannia Parking Group Ltd claims “entered (xxx) at 10.23:04 and departed at 13:40:53”. Britannia Parking Group Ltd states the images and time stamps are collected by its ANPR camera system installed on site.

In terms of the technology of the ANPR cameras themselves, I would stress to POPLA that they should not assume that ANPR technology is generally accurate and sound. This is because The British Parking Association does not audit the ANPR systems in use by parking operators, and the BPA cannot claim to have a verifiable procedure in place to ensure that each system is in good working order or that the data collected is accurate.

Independent research has not backed up this assumption that that the technology is 'generally accurate' or proportionate, or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks.

As proof of this assertion here are two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits:

Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about
BPA somehow performing 'ANPR system audits', and Mr Clark says:

"You were concerned about a comment from the POPLA assessor who determined your case which said:

"In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure
that they are in good working order and that the data collected is accurate"

You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us.

This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to.

POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:

''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.''

Our auditors check operators compliance with this Code clause and not the cameras themselves.''

Secondly, ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question.

The BPA even warned about ANPR flaws:

''As with all new technology, there are issues associated with its use'' and they specifically mention the flaw of assuming that 'drive in, drive out' events are parking
events. They state that: ''Reputable operators tend not to uphold charge certificates issued in this manner''.

Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO:

As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO when the public, or groups, make complaints.

Please show the above email from Steve Clark, to your Lead Adjudicator.

Kindly stop assuming ANPR systems work, and expecting consumers to prove the impossible about the workings of a system over which they have no control but where
independent and publicly available information about its inherent failings is very readily available.

7) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for:

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 Codeof 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.

Britannia Parking Group Ltd 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.

Umkomaas

At almost 4,000 words it looks long enough to give Britannia sufficient of a headache in making their case to POPLA. You'll have to wait and see how they respond then pick apart their evidence. They may throw their cards in, then you'll be clear of this.

Whether the appeal will succeed at POPLA if Britannia do contest is becoming less predictable. The problem with pure template-based appeals is that PPCs are responding with their own templates.

System

The response I got from the BPA was that Britannia Parking couldn't explain why their appeal portal was closed early.

I would go back and ask if the BPA has investigated how many times the Britannia portal has failed in this way. Clearly not allowing appeals is a breach of not only the Code of Practice but the actual requirements set down by the Secretary of State.

Tell them you intend to contact the SoS about the issue but felt it only right that the BPA explain their protocols when they find issues like this.

No reply, then escalate it. Can't see why the BPA should get away with brushing this stuff under the carpet.

Umkomaas

Can't see why the BPA should get away with brushing this stuff under the carpet.

And that brush and carpet seem to be getting an increase in usage of late!

Brandon1

Thanks for the feedback. Is there anything that I can change or improve on before I submit this?

Can I post a image of the signage here as I'm sure that some of it that's not that legible?

I'll also contact the BPA to ask for an further explanation about Britannia's web portal issue.