Running out of time for POPLA submission

Coupon-mad

I've suddenly realised that I've got until Monday to actually get this appeal in.

POPLA codes last for 32 days, not the 28 days they say. You have longer than you might think.

BobTheGoldfish

Thanks CM for the heads up about extra time… I had a pig of a migraine for a couple of days that didn't help pulling this together. So here is my draft, if anyone can have a quick gander and tell me if there are any really obvious gaffs. Thanks for all the help so readily given by everyone on here: it takes time (especially for someone with memory problems like me) to wade through it all, but I hope I picked out the salient bits and bobs.

https://www.dropbox.com/s/r3kib7tl753bv45/POPLA-Appeal-redacted.pdf?dl=0

PDF Updated with one that is compatible with earlier versions of Adobe Acrobat—Frightfully sorry about that.

BobTheGoldfish

I realised that the pdf in DropBox might not be easily accessible, so I've pulled out the text version to put into messages here. Obviously without pictures on here.

POPLA Appeal
POPLA Verification Code: XXX
Vehicle Registration: XXX
I, the keeper of this vehicle, received a letter dated XXX acting as a notice to the registered
keeper. My appeal to the Operator—Euro Car Parks Limited—was submitted and acknowledged by the Operator on XXX and rejected via an email dated XXX. 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:
• Grace Period: BPA Code of Practice non-compliance
• Inadequate signage
• No evidence of landowner’s authority to collect parking fees
• No evidence of actual parking event—only entry and exit to and from car park—fails to meet
requirement of PoFA 2012
• Vehicle images in NtK do not meet BPA Code of Practice
• ANPR System not reliable or accurate
• Signs fail to transparently warn drivers of what the ANPR data will be used for
• No planning consent with XXX Borough Council for signage
• No planning consent with XXX Borough Council for additional camera pole
• Operator has not establish who was driving

1 Grace Period: BPA Code of Practice—non-compliance
The BPA’s Code of Practice[1] states (in §13) that there are two grace periods: one at the start and one at the end.
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.”[1, Para. 13.1]
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.”[1, Para. 13.2]
BPA’s Code of Practice (¶13.2a) states that,
“Vehicles are not permitted to park under the grace period in spaces designated to specific users for example Blue Badge holders. At all times vehicles must have appropriate and valid permit e.g Blue Badge on display for enforcement officer to inspect.”[1, Para. 13.2a]
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.”[1, Para. 13.4]
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. Therefore, it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in ¶13.2 and ¶13.4 is also a “reasonable grace period” to apply to ¶13.2a of the BPA’s Code of Practice, exclusion of blue badge drivers is clearly a breach of the Equality Act 2010[2].
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (speaking before the updated version of the Code of Practice was issued) wrote,
“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, no limited to disability.”[3]
In preparation for the update, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in ¶13.4 of the BPA Code
of Practice to read ‘a minimum of eleven minutes’:
“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by [Andy Hiles] that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”[4, Sec. 7]
The recommendation reads:
“Reword Clause 13.4 to ‘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 11 minutes.” [4, Sec. 7.c.i]
However, the updated document continues to state 10 minutes, albeit with the extension to add to ¶13.2 as well as ¶13.4.
{Figure 1: Aerial view of XXX XXX XXX XXX [18] (North vertically up the image)}
This still illustrates that the intention of stating vaguely, ‘a minimum of ten minutes’ in the current BPA Code of Practice (not a maximum—a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken into account.
If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions, decide whether to enter into a contract. Given the points of ambiguous signage, including mixed fonts and images referenced later, it is unreasonable to expect a driver to be able to read the entire signage whilst driving and paying full attention to other vehicles, pedestrians or other possible obstacles—in the same manner that it is illegal to read and send text messages whilst driving[5, Sec. 2,3], [6].
Therefore, if a driver stops for a brief moment to read a sign, they MUST additionally have the opportunity to leave and not accept the terms of an alleged contract. As a result I would argue that the duration of the visit in question (which Euro Car Parks Limited claim was 2 hours, 4 mins) does not breach a fair grace period, and therefore Euro Car Parks Limited are in breach of the BPA Code of Practice.
With reference to figure 1, it can be observed that XXX is a relatively small car park comprising roughly 80 parking spaces. A one way flow system in and out of the car park is imposed due to local traffic conditions: entry is made from the south (green arrow) and exit by the north (red arrow). It is not uncommon to find the car park full and people waiting in their cars for spaces to become available; when this occurs it is often impossible for incoming traffic to bypass the waiting vehicles, or for exiting vehicles to reach the exit. The 10 minute minimum grace period can be very quickly eaten away just waiting.
In referencing the images that have been included in the notice to keeper, the vehicle is alleged to have spent a total time of 2 hours, 4 minutes between entering and leaving the site, and no inference to grace periods have been made, so it is assumed that they have not been considered. Since the code has been broken in this manner, it was incorrect to have requested the registered keeper details of this vehicle.

2 Inadequate signage
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.
The signage presented at the entrance to XXX (figure 2) makes no mention of penalty charges, in spite of being spread across three separate panels. I was unable to read the red text at the bottom of the second panel even when standing right next to it wearing my prescription spectacles. I note that the third panel describes data protection use of information gathered, in my survey of the car park it appears that this is the only instance of such a notice. I noted also that the second and third panels are affixed to a rebated wall that is invisible once a vehicle has entered the body of the car park.
I note that within the Protection of Freedoms Act (PoFA) 2012[7] 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.”
{Figure 2: Entry signage for XXX XXX}
{Figure 3: ParkingEye notice from ‘Beavis’ case}
{Figure 4: Euro Car Parks Limited notice, supplied by operator, from XXX}
{Figure 5: Tweet from UK Supreme court Re circumstances of ParkingEye Ltd vs Beavis case}
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 comparatively minuscule font size of the £90 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 particular car park and those facts only, see figure 5.
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.
The ‘Beavis case’ sign is shown in figure 3 as a comparison to the signs under dispute in this case, shown alongside in figure 4.
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[7, Paras. 2(2), 2(3), 12] and the BPA Code of Practice[1, Para. 18.4], 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 nd June 2016, 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 40pt font size going by this guide: hxxp://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here: hxxp://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
“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.”
“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 maximum 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.
Under Lord Denning’s Red Hand Rule[8], 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’[9] about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgement is binding case law from the Court of Appeal and supports my argument, not the operator’s case: hxxp://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html
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 Euro Car Parks Limited 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 have provided those examples (figures 2 and 4) in order to provide comparisons with the ‘Beavis’ signage (figure 3). 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 No evidence of landowner’s authority to collect parking fees
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[1, Sec. 13]) 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[1, Paras. 7.2, 7.3] defines the mandatory requirements and I put Euro Car Parks Limited 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

4 No evidence of actual parking event—only entry and exit to and from car park—fails to meet requirement of PoFA 2012
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.
Furthermore, 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;”
Euro Car Parks Limited NtK states only, “Location: XXX—XXX This is sufficiently vague as to have me consider it a scam due not having visited any farms recently. It took a Google search to discover that the car park in question is actually in XXX and not one that I frequent. I identified the journey as one being made to aid a severely handicapped lady attend to an errand.
The NtK separately states “Entry XXX XXX” and “Exit XXX XXX” beneath images of the vehicle registration number. At no stage do Euro Car Parks Limited explicitly specify either the ‘period of parking to which the notice relates,’ as required by PoFA 2012[7, Para. 9(2)(a)], or make clear “the circumstances in which the requirement to pay [the charges] arose”[1, Para. 9(2)(c)]. It is not in the gift of Euro Car Parks Limited to substitute ‘entry/exit’ or ‘length of stay’ in place of the PoFA requirement of ‘period of parking’ and then hold the keeper liable as a result.
By virtue of the nature of an ANPR system recording only entry and exit times, it is impossible for Euro Car Parks Limited to definitively state the period of parking.
I require, therefore, that Euro Car Parks Limited provide evidence to show the vehicle in question parked on the date and time for the duration claimed in the location stated in the Notice to Keeper.

5 Vehicle images in NtK do not meet BPA Code of Practice
The BPA Code of Practice Version 7—January 2018 point 20.5a stipulates that:
“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. 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 PCN in question contains two close up images of the vehicle number plate, figure 6. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle as entering or leaving this car park, which is also unidentifiable due to the close cropping of the photographs eliminating any location identifying detail. As these images have been clearly digitally processed in order to extract the license plate alone it clearly follows that these are not the original image.
{Figure 6: Vehicle number plate images from PCN}
As part of my initial appeal Euro Car Parks Limited furnished me with two further photographs, apparently from which the vehicle number plates had been cropped; but as they contain nothing obvious in the way of identifying marks to positively identify the XXX I require Euro Car Parks Limited to demonstrate how these images are able to positively identify beyond doubt the entry and exit of the location stated.

BobTheGoldfish

6 ANPR System not reliable or accurate
The Euro Car Parks Limited Notice to Keeper shows two images of a vehicle number plate corresponding with that of the vehicle in question. There is no connections demonstrated whatsoever with the car park in question.
The Notice to Keeper states:
“Location: XXX XXX On XXX the vehicle XXX entered XXX XXX at XXX and departed at XXX on XXX.”
These times do not equate to any single evidenced period of parking. By Euro Car Parks Limited’s own admission on their Notice to Keeper, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.
Since there is no evidence to actual parking times this would fail the requirements of PoFA 2012, paragraph 9(2) (a), which states:
“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”
Paragraph 21.3 of the BPA Code of Practise Version 7—January 2018 states that parking companies “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 out agents.”
I require Euro Car Parks Limited to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photograph images to ensure the accuracy of the ANPR images.
{Figure 7: Data collection, usage and protection signage at XXX XXX XXX XXX}
As “grace periods” (specifically the time taken to locate a parking place, locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to agree with the terms or leave) are of importance in this case, and the parking charge is founded entirely on images of the vehicle number plate allegedly entering and leaving the car park at specific times (2 hours, 4 minutes and 21 seconds apart), it is vital that Euro Car Parks Limited produces the evidence requested in the previous paragraph.

7 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 Version 7 – January 2018 advises operators that they: “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.”
Euro Car Parks Limited’s signs do not comply with these requirements because the 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 Code of Practice and Consumer Law.
The main Euro Car Parks Limited signs at XXX (figure 4) state: “Camera controlled”; “Cameras in operation Monday to Saturday 6am to 10pm Sunday 9am to 10pm” and “We are using cameras to capture images of vehicle number plates and calculate the length of stay between entry and exit during the above hours.”
One additional sign adjacent to the entrance (figure 7) also states, “Vehicle registration plates, images of vehicles and car park users are being collected on this site by Euro Car Parks Limited for the purpose of enforcing the terms & conditions as advertised on the signage within the car park under contract law to protect legitimate interests and analyse consumer behaviour.” In addition it states, “Your details may be shared with the DVLA; Police and other third parties where applicable.”
This information is only provided on the single sign at the entrance to the XXX and is presented on the third of three panels displayed in increasingly smaller typeface sizes, see figure 2 for comparison and figure 8 for relative view on approach to car park.
{Figure 8: XXXX approach with Euro Car Parks Limited signage highlighted}
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[10] including:
Ҧ68 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
Ҧ69 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[11] 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 car park. The use of a large camera icon in addition to the wording “...images of vehicles and car park users are being collected on this site by Euro Car Parks Ltd...” on the sign suggests CCTV is in operation for security purposes within the car park.
BPA’s Code of Practice Version 7—January 2018 (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: hxxps://ico.org.uk/media/for-organisations/documents/1542/cctv-code-of-practice.pdf
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 Euro Car Parks Limited 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 Euro Car Parks Limited must regularly evaluate whether it is necessary and proportionate to continue using it. Therefore, it follows that I require Euro Car Parks Limited to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and the 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.”
Euro Car Parks Limited has just the single notice (figure 7) that suggests the keepers right to a Subject Access Request (SAR) but it is neither prominent nor plainly written. On the Notice to Keeper there is a single two line paragraph stating that, “If you believe that your data is being used inappropriately you may raise your concerns with the Information Commissioner or the DVLA.” This takes approximately 147mm of the 80mm devoted to “How do I register a complaint?” I would suggest that this is disproportionate given that data protection is a legal requirement as opposed to the majority of other reasons that are business based requirements and is insufficient to properly be taken as a Privacy Notice as it lacks a description of what information needs to be sent with the data request.
The inclusion of a proper Privacy Notice is a mandatory requirement of both the ICO’s CCTV Code of Practice (¶5.3 and ¶7.6) and, in turn, the BPA’s Code of Practice as that requires full compliance with the ICO data protection legislation as a matter of law. The omission of such a mandatory requirement by any data processor using ANPR makes the use of this registered keeper’s data unlawful and, as such, breaches the ICO’s CCTV Code of Practice and the BPA’s Code of Practice, therefore, I contest that POPLA will not be able to find that the PCN was properly given.

8 No planning consent with XXX Borough Council for signage
As of the end of September 2018, there is no record of Planning Permission or Advertising Consent having been applied for in the XXX Borough Council on line planning database for and car parking signage on the site of XXX
The only signage applications listed for this site are:
• ‘XXX’ (ref:XXX, an illuminated shop sign in February 1990)[12];
• ‘XXX’ (ref:XXX, erection of new shopping centre sign in October 1990)[13];
• ‘XXX’ (ref:XXX, five illuminated fascia signs in April 2009)[14]; and
• ‘XXX’ (ref:XXX, a non-illuminated board sign in July 2009)[15].
UK government guidance on advertisement signage requires:
“If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations).
Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under. It is criminal offence to display an advertisement without consent.”[16]
The lack of planning permission implies that all Euro Car Parks Limited pole mounted signage and signage of 0.3m2 and greater on the XXX are illegal, figure 12 shows that the Google Streetmapping vehicle caught sight of forms of this signage being in use at least as long back as August 2014 (and that people have been photographing it for as long).
{Figure 9: Approximate location of new security post—two other red dots on perimeter show original post positions}
{Figure 10: Third 4m security pole not on the original planning application}
{Figure 11: Third 4m security pole from south west angle}
The BPA’s Code of Practice states[1, Para. 2.4]:
Ҧ2.4 When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevan legislation and guidance when operating their businesses. Examples of relevant law and guidance within this sector are:
• contract law
• tort of trespass
• data protection law
• consumer protection law
• Protection of Freedoms Act 2012 (PoFA), including Schedule 4 (included as Appendix C to the Code)
• DVLA Guidelines for Accredited Trade Associations
• equalities law.”
This clearly proves that Euro Car Parks Limited are/have been seeking to enforce Terms and Conditions displayed on illegally erected signage.
I request Euro Car Parks Limited provide evidence that the correct Planning Applications were submitted (and approved) in relation to all pole mounted signage including the entrance sign, and that Advertising Consent was gained for signage exceeding 0.3m2, prior to the date to which this appeal relates (XXX).

9 No planning consent with XXX Borough Council for additional camera pole
As of the end September 2018 there was a single record of a retrospective application in the XXX Borough Council on line planning database for the installation of the two original 4m security poles in XXX (ref: XXX granted XXX [17]), it is evident from viewing the original application that a third 4m security pole has been installed (without permission) to mount cameras further inside the car park boundary.
The original entry camera security pole can be seen in figure 8 with a Euro Car Parks Limited pole mounted sign attached, but otherwise apparently unused. (I imagine that the cabinet base is still in use.)
Figure 9 shows the approximate location of the new 4m security pole plotted upon the plan used from the previous retrospective application.
Close inspection of the aerial view delivered by Google Maps for figure 1 show no evidence of this new security pole, it stands to reason that the pole was installed after the aerial image was taken in around 2015. Figures 10 and 11 show the new security pole in situ at the point corresponding to the approximate location marked in figure 9 with cameras mounted atop.
{Figure 12: Google Streetview image from August 2014}
As with the signage above, this clearly proves that Euro Car Parks Limited are/have been seeking to enforce Terms and Conditions by evidence collected through a camera mounted on an illegally erected post.
I request Euro Car Parks Limited provide evidence that the correct Planning Applications were submitted (and approved) in relation to all security poles, in particular the pole identified as ‘the third pole’ above, prior to the date to which this appeal relates (XXX).

10 Operator has not establish who was driving
In cases with a keeper appellant, yet no PoFA “keeper liability” to rely upon due to PoFA non-compliance stated in previous sections, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid Notice to Keeper.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported ‘Notice to Keeper’ was served or not, because the fact remains I am only appealing as the keeper and only Schedule 4 of the PoFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.
The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
Furthermore, the vital matter of full compliance with the PoFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If (PoFA 2012 Schedule 4 is) not complied with then keeper liability does not generally pass.”
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the PoFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
“I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”

11 References:
[1] British Parking Association, “BPA Approved Operator Scheme: Code of Practice.” Jan-2018 [Online]. Available: hxxps://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2018.pdf. [Accessed: 28-Sep-2018]
[2] Great Britain, Equality Act 2010. 2010 [Online]. Available: hxxps://www.legislation.gov.uk/ukpga/2010/15/contents. [Accessed: 28-Sep-2018]
[3] K. Reynolds, “Good car parking practice includes ‘grace’ periods,” 20-Aug-2013. [Online]. Available: hxxps://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods. [Accessed: 28-Sep-2018]
[4] A. Patel, “Action Notes for Meeting of the Professional Development & Standards Board 30th July 2015,” BPA, Chartered Institute of Highways & Transportation,119 Britannia Walk, London N1 7JE, Jul. 2015 [Online]. Available: hxxps://www.britishparking.co.uk/write/Documents/Meeting%20Notes/Governance/20150730_PDandS_Board_Action_Notes.pdf. [Accessed: 28-Sep-2018]
[5] Great Britain, Road Traffic Act 1988. 1988 [Online]. Available: hxxp://www.legislation.gov.uk/ukpga/1988/52. [Accessed: 01-Oct-2018]
[6] Great Britain, The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003, vol. S.I.110. 2003 [Online]. Available: hxxp://www.legislation.gov.uk/uksi/2003/2695/made. [Accessed: 29-Sep-2018]
[7] Great Britain, Protection of Freedoms Act 2012. 2012, p. 228 [Online]. Available: hxxps://www.legislation.gov.uk/ukpga/2012/9/contents. [Accessed: 29-Sep-2018]
[8] Lord Justice Denning, Lord Justice Morris, and Lord Justice Parker, J Spurling Ltd v Bradshaw [1956] EWCA Civ 3. 1956 [Online]. Available: hxxp://www.bailii.org/ew/cases/EWCA/Civ/1956/3.html. [Accessed: 03-Oct-2018]
[9] Lord Justice Roch, Lord Justuce Waller, and Lord Justice May, Vine v London Borough of Waltham Forest [2000] EWCA Civ 106. 2000 [Online]. Available: hxxp://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html. [Accessed: 02-Oct-2018]
[10] Great Britain, Consumer Rights Act 2015. 2015 [Online]. Available: hxxps://www.legislation.gov.uk/ukpga/2015/15/contents. [Accessed: 02-Oct-2018]
[11] Great Britain, The Consumer Protection from Unfair Trading Regulations 2008. 2008, p. 50 [Online]. Available: hxxp://www.legislation.gov.uk/uksi/2008/1277/contents/made. [Accessed: 02-Oct-2018]
[12] XXX Borough Council Planning Department and XXX, “Erection of externally illuminated shop sign,” Application Number: XXX,XXX. [Online]. Available: hxxp://… [Accessed: 02-Oct-2018]
[13] XXX Borough Council Planning Department and XXX, “Erection of new shopping centre sign,” Application Number: XXX,XXX. [Online]. Available: hxxp://… [Accessed: 02-Oct-2018]
[14] XXX Borough Council Planning Department and XXX, “Application for consent to display five internally illuminated fascia signs.,” Application Number: XXX,XXX. [Online]. Available: hxxp://… [Accessed: 02-Oct-2018]
[15] XXX Borough Council Planning Department and XXX, “Application for consent to display one non illuminated board sign.,” Application Number: XXX,XXX. [Online]. Available: hxxp://… [Accessed:
02-Oct-2018]
[16] Ministry of Housing, Communities and Local Government, “Advertisements,” GOV.UK, 06-Mar-2014. [Online]. Available: hxxps://www.gov.uk/guidance/advertisements. [Accessed: 02-Oct-2018]
[17] XXX Borough Council Planning Department, “Retrospective installation of two 4m security poles within the car park.,” Application Number:XXX,XXX. [Online]. Available: hxxp://… [Accessed: 02-Oct-2018]
[18] “XXX XXX XXX Google Maps. [Online]. Available: hxxps://www.google.co.uk/maps/XXX,120m/data=!3m1!1e3. [Accessed: 29-Sep-2018]

Coupon-mad

I think you have most points but may not win, due to the alleged 34 minute 'overstay'. It's quite a long time.

Hidden in your text I found that the driver was taking a severely disabled person on an errand, so have you absolutely EXHAUSTED the simple remedy of getting this cancelled by the shops/retailer Store Manager tomorrow?

I would do that if possible. ALWAYS do it BEFORE POPLA!

And if you have to submit a POPLA appeal (if the retailer cancellation draws a blank even after telling them about the disability discrimination under the Equality Act, as disabled people MUST be allowed more time) then I would revisit and add to your grace periods section to write out evidence all about the mobility or other medical condition and needs of the passenger (and screenshot a scan of the Blue Badge if she had one).

IMHO that's the only way to make POPLA consider an extra half an hour is acceptable, if they are made to take notice that the passenger was very slow, needed breaks etc. They are crap at caring about the Equality Act but might understand if you reference the BPA CoP about disabled motorists/passengers, where it says operators must comply with the EA, and must understand that it might take disable people a longer time (to go about daily life/read signs/look for a machine, get safely to and from the car to premises, etc).

Umkomaas

I wonder if 7,993 words is a record for a POPLA appeal?

BobTheGoldfish

Thank you for taking your time to look through my submission and for the advise CM. It was actually the bank rather than the store that caused the hold up (probably not the best words to use in the same sentence as 'the bank', but hey!) and they were exceptionally unhelpful.
I will take another look at the mobility question, the lady in question doesn't have a blue badge unfortunately, so that won't help, but she does have to use a frame and so … everything … is … very … slow … even … in … normal conditions.
I'll post an update shortly.
Cheers,
Bob ><>

Coupon-mad

No BB doesn't matter. However this won't be easy to make POPLA get it.

But it's hard to prove she walks with a frame unless she's happy for you to embed a nice photo of her with her frame (not showing her face!) and a witness statement from her - signed & dated - confirming her mobility issues...and how long it takes her to walk, especially slowly when stressed, she needs to stop and rest.

And she should add that on xx/xx/18 at xx pm, she was taken in car VRN xxx xxxx to xxxxx location and at the Bank, the staff were concerned about the transaction that she was attempting to make and worked out that she had fallen foul of a telephone scam… so they called the Police. The bank closed and locked the door: with Mrs X and the driver inside. The police eventually arrived and she was then very upset and needed a rest before she could manage to struggle back to the car.

DO NOT SAY she was 'delayed at the bank'. Her WS needs to be pre-written by you and make it state that the extra 34 minutes was purely accounted for by her needing to rest, not being mobile, being slow with her stop-start walking and being especially breathless and stressed that day, etc. Bung that in as evidence too.

BobTheGoldfish

Thanks for the feedback, I think I'm at my limit of time, so with the following additions I'm going to have to make my submission today.

In section 1: After the BPA's CoP ¶13 quotations, I've added:

BPA’s Code of Practice (¶16.1) states that,
“The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.”[1, Para. 16.1]
BPA’s Code of Practice (¶16.2) states that,
“‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.”[1, Para. 16.2]

and revised the following paragraph to read:

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. Therefore, it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in ¶13.2 and ¶13.4 is also a “reasonable grace period” to apply to ¶13.2a of the BPA’s Code of Practice especially with regard to ¶16.1, ¶16.2 and the Equality Act 2010[2].

Then before the penultimate paragraph of section 1, I've added:

This specific journey was initiated by a severely handicapped passenger that wished to attend the bank (in figure 1, XXX Bank can be seen indicated in the top right) before it closed at 16:00. She does not have a blue badge and so this is the closest that it was possible to park, but it is a long walk for her and so it was necessary to arrive at the car park by at least 15:40 to ensure that she would be at the bank by 16:00. Had all been well the passenger and driver would have been to the bank and back to the car by 16:30 at the latest, however, the bank identified that the passenger had been taken in by a telephone scam and had to call in the Police. The bank closed and locked the door with both driver and passenger inside awaiting the arrival of the Police, who eventually arrived to take statements some time after five o’clock. The passenger was, understandably upset by the ordeal and had to rest before being able to even begin to struggle back to the car.
The driver was unaware of the time limit on the parking, but asking since receiving the NtK they ‘guessed’ it would have been two or three hours due to the restaurants that are serviced by the car park: they inform me that they have no recollection of seeing any signage as they were more concerned for their passenger.

Fingers crossed… not heard anything from my email to the bank, but I'm not holding my breath there—I have a long standing hatred of banks.

Kind regards,
Bob ><>

References:
[1] British Parking Association, “BPA Approved Operator Scheme: Code of Practice.” Jan-2018 [Online]. Available: https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2018.pdf. [Accessed: 28-Sep-2018]
[2] Great Britain, Equality Act 2010. 2010 [Online]. Available: https://www.legislation.gov.uk/ukpga/2010/15/contents. [Accessed: 28-Sep-2018]

Coupon-mad

POPLA codes last 32 days...