ParkingEye Claim Help - Watergate Bay, Newquay

Joefish

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. 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. These photographs contain nothing obvious in the way of identifying marks to positively identify XXX car park. I therefore require ParkingEye to demonstrate how these images are able to positively identify beyond doubt the entry and exit of the location stated.

6 ANPR System not reliable or accurate
The ParkingEye 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 ParkingEye’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 ParkingEye 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: ANPR 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, 48 minutes apart), it is vital that ParkingEye 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.”
ParkingEye’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 ParkingEye signs at XXX (figure 4) state: “Car Park montored by ANPR systems” and “The data we collect comprises images of vehicles using the car park and/or the Vehicle Registration Mark. This is collected via Automatic Number Plate Recognition Cameras.”
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:
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 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 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 ParkingEye 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 ParkingEye must regularly evaluate whether it is necessary and proportionate to continue using it. Therefore, it follows that I require ParkingEye 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.”
On the Notice to Keeper there is a single two lines within a paragraph that state, “If you believe that your data has been obtained fraudulently or misused, please contact us straight away.”
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 Council for signage
As of September 2018, there is no record of Planning Permission or Advertising Consent having been applied for in the XXX Council online planning database for any car parking signage on the site of XXX.
The only signage application listed for this site is:
• ‘XXX’ (ref:XXX, addition of low level signage boxes and number plate scanning camera on October 29th 2018).
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.”
The lack of planning permission implies that all ParkingEye 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 June 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:
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 relevant 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 ParkingEye are/have been seeking to enforce Terms and Conditions displayed on illegally erected signage.
I request ParkingEye 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).

Joefish

Is anyone able to give me feedback on this please? I've got to send my appeal to POPLA soon

Joefish

I realised I'm currently on 31 days for my POPLA deadline (mixed up my dates) so I'm going to have to go ahead with this regardless of feedback. If anyone can give me some input before tonight/tomorrow then I'd very much appreciate it!

Joefish

Right, well I'm going to send this off in the morning then...fingers crossed it's actually OK - this is not my strong suit!

Joefish

Quick update - I received Parking Eye's response just before Christmas. It was quite short and to the point. In it they stated that they didn't ever manage car park's for Cornwall Council...it turns out there's another car park hidden away at Watergate Bay, which is the council owned one that I paid to park in (I know, I know)!

Anyway, embarrassed, I decided to leave it at that and see what POPLA decided. I got a decision last week - I'll just ctrl+V for your reading pleasure...

"The appellant has queried the operator’s authority to manage the land in question. Section 7.1 of the British Parking Association Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly. The operator has not provided any evidence in response to this ground of appeal. As such, I cannot determine whether they have authority to issue PCNs on the site in question. I note that the appellant has raised further grounds for appeal in this case, however as I have allowed the appeal for this reason, I have not considered them."


So I parked in a car park, paid for parking in another, appealed it and won!

Coupon-mad

Hilarious! Can you please post that in POPLA Decisions for everyone's delectation?