POPLA appeal- non winnable? Pls help

mystique81

Hi All
I received a NCP notice for allegedly overstaying in the car park near my gym. I have a free 90mins parking included in my gym membership. I have to enter my reg in the gym Ipad which then registers me with the NCP for 90mins free. I think on that day I forgot to do this, hence why the PCN.
I spoke to the gym and they said I have to fight this myself. So I appealed to NCP, but was rejected. Unfortunately I appealed before I found this forum, and admitted liability as a driver (I am also the keeper of the vehicle). I also admitted that I had parked at the location and that I was within my 90minutes .
I have gone through the whole NEWBIS thread and have put together a POPLA draft appeal.
I am using the sections relevant to my case which I copied of the long wining popla appeal with the photographs . HOWEVER - regarding the signage - this car park does have the signs right at the car park entrance. One sign says T&C's apply and you can be charged either £60 or £100 depending if paid within 14 days or after. The letters are fairly visible to the driver. The other signs says "ANPR is in use and will take photographs of the vehicle". Then as soon as you enter the car park on the left hand side are T&Cs which are not readable (the usual standard tiny letters). The only mention of ANPR to be used for enforcements is in the T&Cs which is tiny. I used a section on ANPR in my appeal.
I am worried that I cannot use the argument about signage, because it is fairly visible at the entrance to the car park. There are other signs around the car park but they are not as prominent and readable and I doubt anyone reads them.
Also - there is a couple more sections which I consider using however not sure if they are completely relevant to my case. One is regarding the Grace periods - I don't think this would help me as I was within my allocated free time. The other section is regarding "No evidence of period parked - NtK does not meet POFA 2012 requirements" - basically for NCP to prove that the vehicle was parked on the specified land and in the specified times, rather than only providing entry and exit photographs of the vehicle. Unfortunately for me I admitted that I was pared there in my first appeal , so this point is also lost - am I right?
Someone else posted a similar post to mine and someone advised to get NCP to prove that the ipad was in the gym at that time. I am not sure how to word this - can anyone help please?
I have posted my POPLA draft below. Do I have a chance of winning or shall I just give up and pay £100? Your advice, suggestions and comments are much appreciated. Thank you

mystique81

Dear POPLA Adjudicator
Re: Appeal re PCN xxx issued by National Car Parks Limited (NCP)
Vehicle Registration: xxx
POPLA verification code: xxx
I, the registered keeper of this vehicle, received a letter dated 20 June 2018 acting as a notice to the registered keeper. My appeal to the operator – NCP – was submitted and acknowledged on 22 June 2018 but subsequently rejected by an email dated 6 July 2018. 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) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
3) 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 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach
4) The ANPR System is Neither Reliable nor Accurate
5) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for
6) The vehicle was indeed authorised to be on the land legally as the below e-mail from the xxx gym Manager and a screenshot of their entry log-in system

1) 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 then 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 - 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) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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 the parking charge. 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''.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that I 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:

Link removed due to the site rules

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:

Link removed due to the site rules

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.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

Link removed due to the site rules

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

Link removed due to the site rules

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:

Link removed due to the site rules

''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 a 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.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

Link removed due to the site rules

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

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.
(continue below)

mystique81

3) 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). 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:

• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• 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:

Link removed due to site rules

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.”

The quotations above taken directly from the ICO’s CCTV Code of Practice state that if NCP wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that NCP must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require NCP to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has “a lawful basis and is justified, necessary and proportionate”.

The ICO’s CCTV Code of Practice goes on to state:

“5.3 Staying in Control

Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:

• tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”

“7.6 Privacy Notices

It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear.

One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.”

NCP has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, NCP has not stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork, Notice to Keeper, reminder letter or rejection letter despite there being a Data Protection heading on the back of the Notice to Keeper. This is a mandatory requirement of the ICO’s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the BPA’s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful.

As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

4) The ANPR System is Neither Reliable nor Accurate

NCP’s Notice to Keeper simply claims “that the vehicle “entered xxx at 16:24:19 and departed at 17:52:45”. NCP 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, POPLA please take note and bin your usual 'ANPR is generally OK' template because:

The British Parking Association DOES NOT AUDIT the ANPR systems in use by parking operators, and the BPA has NO WAY to ensure that the systems are in good working order or that the data collected is accurate. Independent research has NOT found 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 doing '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: Link removed due to site rules

''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 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO:

Link removed due to site rules

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.

POPLA cannot use your usual 'the BPA audits it' erroneous template which needs consigning to the bin.

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.

5) 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 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.

NCP’s signs do not comply with these requirements because these car park signage failed to transparently 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.

Recent investigation (27 Apr 2018) by BBC Link removed due to site rules 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 NCP to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

6) The vehicle was indeed authorised to be on the land legally as the below e-mail from xxx gym Manager and a screenshot of their entry log-in system

As a member of xxx Gym in xxx a part of my membership contract is that I have the right to park in the xxx Car Park for up to 90 minutes free of charge. Please see the attached evidence - an email confirmation from the xxx gym Manager who confirms this in writing and a screenshot of the xxx gym membership system which highlights the entry date and time xxx at 16:27. NCP provided a photographic evidence of the vehicle entry and exit times – Entry xxx at 16:24:19 and exit 17:52:45. This proves that the vehicle left the site within the allocated 90 minutes free of charge period. I would therefore request this PCN to be cancelled.

Umkomaas

Do the signs in the car park state that you must enter your vehicle registration number every time you use the gym? Is the car park exclusively for gym members?

I spoke to the gym and they said I have to fight this myself.

Have you now cancelled your gym membership as a result?

mystique81

HI Umkomaas

There are no signs in the car park that I must enter my reg every time i use the gym however we did have an email from the gym advising on the new system which involves entering the reg in the gym ipad.
I have not yet cancel the membership -the truth is I don't really want to, however i think they should get this cancelled. I am also thinking of writing to the landowner with the hope they can cancel this. I only have until 6th of August.

Umkomaas

If there is absolutely nothing whatsoever on the signage about entering your VRM every time you use the gym, then that must be a major point in your appeal. The signage is the contract between you and NCP which gives them the basis on which to claim against you. The contract does not place any requirement on you to enter your VRM, so you have to build this carefully into your POPLA appeal.

The email from the gym is irrelevant, the parking contract is not between the gym and you.

I've not ploughed through your POPLA appeal, but at a glance it looks like a copy and paste of the newbies templates. POPLA assessors will have seen these zillions of times and you need to ensure they do not gloss over your specific point about no requirement to enter your VRM when using the gym. So make it a discreet and unmissable part of your signage appeal section.

Please get some good quality photos of the signage, with close ups where the text is legible, showing/proving there is no mention of the need for VRM input.

I have not yet cancel the membership -the truth is I don't really want to, however i think they should get this cancelled.

But unless you (or any other member) do anything about it, they will never feel the need to help. They have to feel the pain you are - as a minimum I'd be threatening cancellation, hitting them hard on social media, complaining right up the managerial hierarchy, through to their HO and MD (if there is one).

mystique81

Thank you, that is a very good point! There is absolutely no mention on their signs and T&C's to enter my reg number every time i use the gym so I will use this as my number 2 point in my appeal
And yes you are correct in saying I copied and pasted previous popla appeals - didn't know where to start and how to compose it all. Is there anything I should leave out or add apart from the above?

I will speak to the gym and will try to get to their head office/ MD. Is there a point to write to the landowner ? Can they do anything?

Umkomaas

On a skim the appeal seems to cover the bases available to you.

I would have as your opening shot the signage issue and the first point in that being the absence of any requirement to enter the VRM. You should check out the 'contra proferentem' and use it and its meaning in your appeal.

Just let us see what you're going to say about the signage - no need to copy and paste again all the other parts of your appeal.

Complain to everyone you can. Get your MP involved, as there is a Bill going through its Parliamentary stages (Google Sir Greg Knight) that you need your MP to support.

The landowner is the likely party to have brought NCP in to the car park.

mystique81

Great thank you so much, i will amend the appeal and post here.
Will complain to everyone else you suggested!!

mystique81

I have looked up the contra proferentem but I don't understand it and have no idea how to use it in my appeal. Is it possible to help me with this please? Sorry to be a pain but I am stuck on this.

Also - do I keep the whole long section about the signage? I am not sure because as I said earlier - their signage is pretty much in your face, visible and fairly clear apart from the T&Cs.

Le_Kirk

Contra Proferentem is this: -

The contra proferentem rule is a rule in contract law which states that any clause considered to be ambiguous should be interpreted against the interests of the party that requested that the clause is included.

It means it's bad for them and good for you.