Multiple ANPR ParkingEye fines on residential property

rubberduck1

Hi,

I have read through a lot of other threads but haven't yet found one with a couple of the details I would like to ask.

My car was parked on a hospital accommodation car park (owned by staffordshire housing association). The driver had parked there multiple times previously visiting friends/colleagues. However at some point without knowing the operator of the car park must have changed. Either the signs were not immediately changed or given the second nature of parking there they weren't noticed. This resulted in 4 PCNs being sent to the registered keeper, as by the time the first letter arrived the 4th episode had occured.

Please could anybody advise me whether this changes anything?

As the registered keeper I have POPLA codes and will post my draft reply:
I am the registered keeper of this vehicle. I received a letter dated

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acting as a notice to the registered keeper. My appeal to the Operator - ParkingEye - was submitted, acknowledged and rejected via an email dated

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. I contend that 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 to put strict proof of full compliance with the BPA Code of Practice (CoP)

2. The signs in this car park are not prominent, clear or legible from all parking spaces

3. The ANPR location means it will capture cars entering nearby areas of parking.

4. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) due to inherent failure to indicate the 'commercial intent' of the cameras.

5. Breach of the BPA Code of Practice and ICO Code of Practice rules for ANPR and Surveillance Cameras

6. Photo evidence open to being doctored

7. The ANPR system is neither reliable nor accurate



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.
I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods;
The land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.

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 POPLAbut 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 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.

Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“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

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''.

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 is NOT sufficient to bring the parking charge to the attention of the motorist.

Here, the signs are sporadically placed, indeed obscured and hidden by cars parked outside parking bays (due to inadequate number of spaces for the number of permits issued), and not visible from all of the parking bays. As seen in the image below, on entrance to the car park and in parking in the spaces immediately in front, no signs with T&Cs or charges are visible to the driver.
[I am unsure how to attach my images here if anybody can advise?]
In an area where there are multiple parking operators within the immediate vicinity of each other signs need to be clear and obvious as to which area they are relating to, and the terms & conditions applicable. As you can see from the image below there is an APCOA car park sign which is more prominent than the smaller ParkingEye sign, leading the driver to believe they are entering an APCOA managed carpark rather than a ParkingEye one. This is particularly important because the land on which the alleged contravention occurred is owned by Staffordshire Housing Association, whom is mentioned in the sign directly above the APCOA parking sign.


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.

3. The ANPR location means it will capture cars entering nearby areas of parking.
The ANPR camera is pointing onto a road which is used to access both the carpark where the alleged contravention took place and the adjacent APCOA managed carpark. As can be seen in the image above to park in the spaces in the APCOA managed carpark, namely the white car seen above, it would be necessary to drive partially along Grindley Hill Court road to reverse into the mentioned parking space. This would mean a car could be captured by the ANPR system even though said car never parked nor entered the ‘ParkingEye managed’ carpark. I therefore ask the operator to provide proof of which area the ANPR is monitoring and how they are able to differentiate

4. The signs fail to transparently warn drivers of what the ANPR 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 ANPRcamera 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.

ParkingEye’s’ 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.

It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
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:

(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':

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.''
It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.

5. Breach of the BPA Code of Practice and ICO Code of Practice rules for ANPR and Surveillance Cameras

This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a prerequisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:

i) Lack of an initial privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and

iv) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and

16.1 This Claimant has therefore failed to meet its legal obligations under the DPA.

16.2 In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was unlawful; breaching principle one of the DPA.

17 The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

17.1 Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

17.2 Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #16 i - v above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).

17.3 Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

17.4 In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPRinformation. The collection of the information was unlawful; breaching principle one of the DPA.

17.5 To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully
6. Photo evidence open to being doctored

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time and location) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Metadata. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge ParkingEye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).

7. The ANPR system is neither reliable nor accurate

The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEyev Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point
Furthermore 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 hospital and residential area, such as the location in question. The BPA even warned about ANPR flaws:

[I had to remove the british parking URL here] Other-Advice#4

''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''.

In this case, as the driver drove in and briefly stopped where there are no signs or bays at all (not in any retail area, but at a private residence not signed as being managed by Smart Parking) the ANPR system has indeed failed and the operator has breached the first data protection principle by processing flawed data from their system.

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:

[I had to remove the british parking URL here] News/excessive-use-of-anpr-cameras-for-enforcement

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.

Coupon-mad

Are any of them what the NEWBIES thread shows in a picture - Golden tickets?

rubberduck1

Thanks for your reply. Unfortunately they all have a paragraph about POFA 2012 on the back so from what I read on the NEWBIES thread I don't think so.

Umkomaas

PE don't 'manage' parking residential areas as they rely on ANPR cameras. Did the vehicle pass through the general hospital car park to reach the residential area?

I can't see how PE ANPR can work in a residential setting.

rubberduck1

I think its still a public road initially with a staff hospital parking either side of said road (mostly a big car park to the left and a few roadside spaces to the right) right up to the border of the ParkingEye site with their initial sign saying ParkingEye managed site, see signs inside for T&Cs.
If rather than pulling in left or right to spaces and carried ~5m forward you would probably be directly under the ANPR camera with parking aresa forking out either side of that. Sorry if thats a rubbish description
Its at Grindley Hill Court (if google maps give a better description than mine), hospital staff accomodation for Royal Stoke Hospital which i believe is managed/owned by staffordshire housing association.

Coupon-mad

What is the alleged contravention, and can you get pics of the signs?

You have a month, as POPLA codes in fact last 32 days.

rubberduck1

The alleged contravention is parking without a resident permit/registration, they do allow 5hr parking for visitors using a 'terminal' inside the common room according to their sign but as the sign wasn't seen the signs the driver didn't know this (though according to staffordshire housing whom I contacted for help this isn't for 'visitors' but contractors).

I have images but it won't let me posts URLs of them because I am a new user unfortunately.

Coupon-mad

Wow that will screw up the Doctors' and Nurses' lives.

- as soon as they use a courtesy car while theirs is in for repairs - PCN

- if their Mum visits - she gets a PCN

- if they get a delivery van calling by to deliver to a couple of flats - PCN.

rubberduck1

Yeah exactly, I still can't believe the housing association wanted to team up with them. Even worse that because its so close to the hospital it's not like you can just park on a nearby road because its all so heavily restricted.

KeithP

Here's the first entrance sign: goo.gl/maps/sVgC2scJaQt

Then we come to real entrance signs and DYLs: goo.gl/maps/cwnryJJ76m22

Here's the T&Cs: goo.gl/maps/862iWVxoPYB2

Note that those images are dated October 2015 - looks like PE came along later.

rubberduck1

KeithP thanks for your photos but unfortunately these are of the old signs. As Parking Eye only took over in mid July the Google maps ones are of the old operator.