Britania Parking PCN - Bournemouth

Nonconform

PART 2

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5. British Parking Association – Breach of the Code of Practice (CoP): Grace Period

As a member of the BPA, Britannia Parking would be subject to their Code of Practice which states in Section 13:

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

13.4 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.

18.5 If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the 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

Britannia Parking claim that the 2 hour ticket purchased for my vehicle had expired and that my vehicle was recorded entering the car park at XX:XX and leaving the car park at XX:XX. Firstly, no evidence was included to support their claim of the ticket purchase and expiry time, and secondly BPA’s CoP states that the grace period at the end of the parking period should be a minimum of 10 minutes. This implies that it may take longer than 10 minutes to exit the car park but this does not amount to an overstay on the period of time on the ticket purchased. Nor does it take into account that if the car entered the car park at XX:XX, a justifiable period of time would be expected to find a space, park in it, exit the vehicle and make a purchase of the ticket after reading the tariffs on the pay machine. Taking this into account and adding the time allowed for the Grace period allowed then it would not be unreasonable to say that if the car exited the carpark at XX:XX, the Grace period was still valid.

Therefore, I believe that Britannia Parking are in breach of the BPA Code of Practice and are unjustified in issuing the PCN.

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

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

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

• be registered with the Information Commissioner

• keep to the Data Protection Act

• follow the DVLA requirements concerning the data

• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.”

The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at: hxxps://ico.org.uk/media/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 Britannia Parking 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 Britannia Parking must regularly evaluate whether it is necessary and proportionate to continue using it.

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

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

“5.3 Staying in Control
Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:
• tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”

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

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

Britannia Parking has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Britannia Parking has not stated a Privacy Notice or any wording even suggesting the keepers’ right to a SAR on any paperwork, NtK, reminder letter or rejection letter despite there being a Data Protection heading on the back of the NtK. This is a mandatory requirement of the ICO’s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the BPA’s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful.
As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

7. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

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

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Britannia Parking’s NtK simply claims that the vehicle “entered at XX:XX and departed at XX:XX”. At no stage does Britannia Parking explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

Image of NtK issued to the Keeper:
hxxps://postimg.cc/vg0F1d9K

Britannia Parking uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the area to calculate their length of stay. Britannia Parking have not produced any images of the car entering the car park by use of the entrance or parking for a sustained period of time. The images contained on the NtK show the car entering the EXIT of the car park and leaving the EXIT of the car park with no date or time stamps. The ANPR may well have recorded images of the car entering the EXIT car, leaving and then re-entering the car park EXIT at a later time. Any vehicle manoeuvring around the EXIT of the car park will be captured by the ANPR. Britannia Parking, however, does not provide any direct evidence of its alleged violation. The operator's photos do not show an entrance image at all. A car shown facing the camera at the EXIT is just that, a car manoeuvring at the EXIT. It is not within the gift of Britannia Parking to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

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

Images contained on the NtK - car depicted manoeuvring at the exit of the car park:
hxxps://postimg.cc/qgWD1RkL

Image showing Britannia Parking car park exit:
hxxps://postimg.cc/Xrk2Nk9H

Note the two yellow railings inside the car park on the left beyond the gate, match the two railings depicted on the NtK ANPR images showing where the car is in relation to the exit.

8. No Breach of Contract

Britannia Parking claim that their records show the notice was correctly issued as my vehicle was parked “in breach of the Terms and Conditions of the Car Park”. They do not explain which terms exactly were breached other than to say that the pay and display ticket had expired minutes which they base on the time their ANPR system recorded my vehicle leaving the car park.

The signs do not state that the parking contract begins and ends based on the time you enter and leave the car park. As there is a Pay and Display system in operation, the motorist would rightly interpret that the start of the contract begins from the time you buy your ticket.

According to Paragraph 13.2 of the British Parking Association’s CoP a reasonable ‘grace period’ is to be allowed in which the driver can decide if they are going to stay or leave. They should also be allowed a grace period to read the signs and leave before taking enforcement action.

According to Paragraph 13.4 of the CoP a reasonable grace period should also be allowed for a vehicle to leave the private car park after the parking contract has ended before enforcement action is taken, a minimum of 10 minutes.

Under the principle of contra proferentem an ambiguous contractual term must be read in a manner most favourable to the motorist. In this situation the word "stay" is ambiguous as the operator is relying on this ending at a time which was not brought to the notice of the driver and is clearly open to a different interpretation.

I therefore contend that the contravention did not occur and there was no breach of contract.

9. Vehicle Images contained in PCN: non-compliance of BPA Code of Practice

The BPA Code of Practice point 20.5a stipulates that:
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and timestamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
The NtK in question (see previous image “Images contained on the NtK - car depicted manoeuvring at the exit of the car park”) contains two close-up license plate images and two images of the car. None of the images contain a time and date stamp and the second image of the license plate is a duplication of the first image. These images are taken of the exit of the car park. There are no images of the car using the entrance to the car park.

As a result, these images cannot be used as confirmation of the incident that Britannia Parking claim was unauthorized.

I require Britannia Parking to produce evidence of the original images containing the required date and time stamp and images showing the car is actually parked in the location stated rather than just manoeuvring in and out of the exit. Given the view of the public road seen in the image above, failing to produce such evidence would indicate the Britannia Parking has been using ANPR to engage random license plate collection of all vehicles manoeuvring in and out of the exit and send PCNs with the aim to extract penalty.

Recent investigation (27 Apr 2018) by the BBC https://www.bbc.co.uk/news/business-43912327 shows that the private parking industry is unregulated and does not have any accountability. Various cases show the industry’s priority is maximizing the penalty received from the motorist without due regard to the integrity of the evidence. Private parking operators are financially incentivized not to use the original image as evidence, but putting partial evidence 21 together to generate a case biased towards generating a penalty fee. Based on the fact above, I require Britannia Parking to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

10. Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

As for whether average consumers 'would have agreed' to pay £100, had there been negotiations in advance, the answer here is obviously no. One could have parked for 24 hours in this car park for £5.00. There would have been no justification or negotiation that could possibly persuade an average consumer to pay £100 to this parking firm. Their charge relies upon unseen terms and unclear contracts which should not be upheld.

Image of Britannia Parking carpark entrance and “All Day Parking £5.00” sign:
hxxps://postimg.cc/Jy7psHq1

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully,

KeithP

I contend that I, as the keeper, am not liable...

Coupon-mad will be along shortly to tell you what is wrong with that.


You ebay link doesn't do what you want it to do.

Nonconform

How about:

I, the keeper of the vehicle, wish to appeal against the parking charge on the following grounds:

Nonconform

ah that's a shame, it looks like the ebay guide on signs has gone, so the link no longer points to it.

Coupon-mad

Nonconform wrote: »

How about:

I, the keeper of the vehicle, wish to appeal against the parking charge on the following grounds:

Eeek! Even worse split infinitive than the last one, Look at that poor isolated verb.

Nonconform

Any better?

"I received a Notice to Keeper (NtK) from Britannia Parking regarding a parking charge of £100. As the registered keeper of the vehicle in question, I wish to appeal against the PCN on the following grounds:"


Has anyone had a chance to review the appeal please? I can see there are a lot of requests for help so appreciate your time!

Nonconform

Coupon-mad, are you ok to feedback on the appeal I posted please.

Nonconform

Would really appreciate some help with this appeal. The submission date is looming so I'm rapidly running out of time before the opportunity to get it right is lost. Not sure if anyone is still interested in helping me with this but could definitely do with some advice. Thanks

Coupon-mad

#8 repeats #5 about grace periods, so remove #8.

Also remove #10 which is truly ancient and was dismissed in the Beavis case 3 years ago.

Some suggested changes here; do NOT calculate the 'total' overstay!:

Britannia Parking claim that the 2 hour ticket purchased for my vehicle had expired and that my vehicle was recorded entering the car park at XX:XX and leaving the car park at XX:XX. [STRIKE]This works out to a 19 minute overstay.[/STRIKE] Firstly, no evidence was included to support their claim of the ticket purchase and expiry time, and secondly BPA’s CoP states that the grace period at the end of the parking period should be a minimum of 10 minutes. This implies that it may take longer than 10 minutes to exit the car park but this does not amount to an overstay on the period of time on the ticket purchased. Nor does it take into account that if the car entered the car park at 16:13, a justifiable period of time would be expected to find a space, park in it, exit the vehicle and make a purchase of the ticket after reading the tariffs on the pay machine. Taking this into account and adding the time allowed for the Grace period allowed then it would not be unreasonable to say that if the car exited the carpark at XX:XX, the Grace period was still valid.

Moreover, there is evidence that suggests this was more than one visit, as both images in fact show the car at the exit.

POPLA Assessors must look at the evidence to disprove and disregard your so-called Sector expert's lie that there is only one overall grace period once a person decides to stay, thereby somehow wiping out the observation period as if it never existed! The BPA CoP shows this is not true, as does BPA Director of Policy and Public Affairs, Kelvin Reynolds' official Trade Body article about 'Observation periods' and 'Grace periods' being two separate periods that must be applied separately:

https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. 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,” he explains.

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

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.''

And why is this (below) buried and impossible to read near the bottom, hidden in a long point about something else? Surely this should be your first point on its own, with an embedded image from GoogleStreetView or your own photos of the exit as proof that both images just show the car manoeuvring at the EXIT?

The NtK in question (see previous image “Images contained on the NtK - car depicted manoeuvring at the exit of the car park”) contains two close-up license plate images and two images of the car. None of the images contain a time and date stamp and the second image of the license plate is a duplication of the first image. These images are taken of the exit of the car park. There are no images of the car using the entrance to the car park.

You should make much more of that and say you believe the driver did not enter the car park, or possibly it was two visits, which can never pass as the 'single parking event' that the POFA would allow for 'keeper liability' to be established.

Two exit photos are not evidence of anything and you need to hang your hat on that point more, with Streetviewpics and an aerial view, too, if you have none you can take.

Nonconform

thank you Coupon-Mad. I have removed #8 and #10. I will make your amendments to #4 and the EXIT scenario.