POPLA appeal, ECP

neisey

I received a PCN for my car entering a car park at 13:33 and leaving at 13:48. I appealed to them that there was no evidence I was parked, the cost is disproportionate etc. They rejected and I went to Popla - I used a template which I have pasted below but through pasted the paragraphs have messed up, ECP have replied with a full photo of the car, all pictures of their signage etc 27 pages worth. I feel like I’ve shot myself in the foot with my POPLA appeal as I can’t bring new evidence in. Sure I need to sit down and rip apart what they have said but I feel like I’m going to lose. Then what?

I the registered keeper of the vehicle received a letter dated 07/12/2018, acting as a notice to registered keeper. I contend that I, as keeper of the vehicle am not liable for the alleged parking charge on the following grounds:

1.Grace period BPA code of practice non-compliance

2. Failure to comply with the data protection ‘ICD Code of Practice’ applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair or proportionate, a serious BPA CoP breach.

3. No evidence of car being parked – notice to keeper does not meet PoFA2012 requirements.

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

5. The ANPR System is Neither Reliable nor Accurate

6. The signs fail to transparently explain what the ANPR Data will be used for

7. The charge is disproportionate and not commercially justifiable



1. Grace Period: BPA Code of Practice non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the start and one at the end (of a minimum of 10 minutes). BPA’s Code of Practice (13.1) states:

“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.”

BPA’s Code of Practice (13.2) states:

“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.”

BPA’s Code of Practice (13.4) also states:

“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.”

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.
It should be made clear - a contract was never entered in to, it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at BPA:
“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, not limited to disability.”

The duration of visit in question (which Euro Car Parks claim was less than 15 minutes is a fair grace period to allow the driver to read the signs and then make the decision whether to enter the contract return to the car and leave the car park safely.

2. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach
BPA’s Code of Practice (21.4) state:

“It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
● be registered with the Information Commissioner
● keep to the Data Protection Act
● follow the DVLA requirements concerning the data
● follow the guidelines from the Information Commissioner’s Office on the
use of CCTV and ANPR cameras, and on keeping and sharing personal
data such as vehicle registration marks
The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at (link removed)

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.”

The quotations above taken directly from the ICO’s CCTV Code of Practice state that if Euro Car Parks 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 must regularly evaluate whether it is necessary and proportionate to continue using it. I require Euro Car Parks 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 the 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 has not stated in their signage a Privacy Notice explaining the keeper’s right to a Subject Access Request (SAR). In fact, Euro Car Parks 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 is also 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.

Therefore, 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.

3. 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;”

Euro Car Parks NtK simply claims that the vehicle “entered Institute Road at 13:33 and departed at 13:48 Euro Car Parks does not specify the “period of parking to which the notice relates”, as required by POFA 2012.
Euro Car Parks 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 vast unbounded and unmarked area to calculate their length of stay. Any vehicle passing by will be captured by ANPR. Euro Car Parks, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Euro Car Parks 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, Euro Car Parks are not able to definitively state the period of parking. I request that Euro Car Parks provide evidence to show the vehicle in question was parked on the 01/12/2018 (for the duration claimed) and at the location stated in the NtK.

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

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 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 NtK in question contains two photos of the license plate. The time and date stamp and license plate have been inserted underneath - not part of images. In addition, the first image does not show a vehicle, only an inserted image of the license plate and time stamp. As a result, these images cannot be used as the confirmation of the incident and Euro Car Parks claim was unauthorized.
I require Euro Car Parks to produce evidence of the original images containing the required date and time stamp and images showing the car parked in the location stated rather than just passing by.

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

5. The ANPR System is Neither Reliable nor Accurate
Euro Car Parks’ NtK simply claims “that the vehicle “entered Institute Road at 13:33 and departed at 13:48 Euro Car Parks state the images and time stamps are collected by its ANPR system installed on site. In terms of the technology of the ANPR cameras themselves.

The BPA does not audit the ANPR systems in use by parking operators, and the BPA cannot ensure that the systems are in good working order or that the data collected is accurate. Independent research has not found that the technology is generally accurate, proportionate, or reliable, and this is one of the reasons why Councils are banned from using it in car parks.

To support this, here are two statements by the BPA, the first one designed to stop POPLA falling into error about assumed audits:

Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says:

"You were concerned about a comment from the POPLA assessor who determined your case which said: "In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate"
You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us. This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to. POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:
''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.'' Our auditors check operators compliance with this Code clause and not the cameras themselves.''

Secondly, ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question. The BPA even warned about ANPR flaws:

[link removed]

''As with all new technology, there are issues associated with its use'' and they specifically mention the flaw of assuming that 'drive in, drive out' events are parking events. They state that: ''Reputable operators tend not to uphold charge certificates issued in this manner''.
Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO:

[Link removed]

As POPLA can see from that, excessive use of ANPR is illegal, and unaudited except for the ICO when the public make complaints. Euro Car Parks is put to strict proof that the system has not failed visitors to said car park.
Consumers cannot be expected to prove the impossible about the workings of a system over which they have no control but where independent and publicly available information about its failings is readily available.

6. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

The signs fail to clearly warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras. Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.
Euro Car Parks’ signs do not comply with these requirements – they 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 CoP and Consumer law.

7. The charge is disproportionate and not commercially justifiable

The amount charged is not based upon any commercially justifiable loss to the company or the landowner. The car was photographed entering and leaving the carpark in less than fifteen minutes - the car was not parked. A charge of £100 for less than fifteen minutes – disregarding any grace period – this is not a justifiable loss to Euro Car Parks, who charges £1 for up to one-hour parking, therefore the charge is excessive.


Edit, their response and the rest is evidence backing up what they said and copies of letters:
Euro Car Parks would like to respond to .... ‘s appeal with the following points:


 Section 18.3 of the British Parking Association’s (BPA) code of practice explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand. Signage on site is clear, when parking on private land it is the driver’s responsibility to read the signage displayed and parked accordance with the terms and conditions as stated. Euro Car Parks have provided photographic evidence showing that the appellant remained at the site for 15 minutes (Figure 1)
 Please be advised that there are 2 pay and display machines as well as the option to Pay By Phone.
 According to BPA Code of Practise 13.4 – car park operators should allow the driver a reasonable period to leave the private car park after the parking contract has ended; before enforcement action is taken. 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.
 The signage clearly states the terms and conditions of parking, all drivers are required to purchase a valid pay and display ticket for the duration of their stay. Euro Car Parks can confirm that the signage on site clearly displays the tariff at Institute Road King Heath (Figure 2).
 Please see Figure 3 – where I can confirm that our NTK is POFA complaint.
 Figure 4 is the agreement.
 Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the
registered keeper’s responsibility to inform of the full name and address within 28 days beginning with the day after the notice was given. If the full amount remains unpaid, under Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’), Euro Car Parks have the right subject of the Act to recover from the keeper of the vehicle at the time it was parked so much of that amount which remains unpaid.
 We note that in the letter it states that the parking charge notice (PCN) is not enforceable as driver has currently not entered into a ‘contract’ with Euro Car Parks. I would respectfully remind that contract law applies in this instance.
 The car park is private property and signage on entrance and within the private car park clearly set out the rules and regulations of the car park and tariffs (if applicable). By entering the car park, parking and leaving the vehicle the driver has accepted the ‘contract’ and therefore if the
driver fail to comply with the terms and conditions a parking charge notice will be correctly
issued.
 Any form of parking ticket or ‘notice’ is issued under the law ‘of trespass and Contract Law’. A
driver who is invited (or chooses) to park on private land and use the car parking facilities and pays a fee/s does so under a contract (signage) with the car park operator. The parking contract sets out the terms that apply to the parking service, including the price.
 The contract (signage) clearly states the extra charges are that the driver will incur and have to pay if they decide to break the contract terms − for example, by parking longer than the time paid for or exceeding the maximum time limit applicable


Any advice please?!

Coupon-mad

Aww, not a good POPLA appeal. The last point is old; you can't say the cost is excessive.

You didn't even have the usual 'no landowner authority' so you didn't even make them show the landowner contract that these firms sometimes omit from evidence.

Anyway never mind, plenty of people here lose v ECP at POPLA and no-one pays!
ECP do not currently sue anyone, and I have ignored them myself, no worries.

Please save our typing fingers by simply searching the forum for ECP POPLA ignore.

neisey

I know! That is annoying. Do I have grounds in the fact that the driver should techincallly be allowed to park, read the terms and conditions and then allowed to decide not to enter the contract, also they have shown no evidence of the car parked. The car was on the car park for fifteen minutes and was just picking someone up not parked properly. So annoying.

Coupon-mad

It doesn't matter, even if you'd done a stronger appeal you might lose, and no-one cares as we just ignore ECP.

neisey

Thank you! But if we ignore them why do we appeal in the first instance?!

MistyZ

neisey wrote: »

But if we ignore them why do we appeal in the first instance?!

Because there's always a chance that an appeal may be accepted or the PPC may withdraw, which would be that bit more satisfying & final.

neisey

Ah okay, thank you 😊 I’ll refute what I can and see how it goes!

KeithP

neisey wrote: »

Thank you! But if we ignore them why do we appeal in the first instance?!

And also to show, at a later date in court if necessary, that you have been reasonable in trying to engage with the PPC.

The_Deep

Complain to your MP as this is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem become so widespread that MPs agreed to enact a Bill to regulate these scammers. Hopefully, this will become law by Easter .

neisey

Thank you, I’ll see how my response goes and then look into the MP business. Ultimately it is annoying as there is free parking nearby and the car wasn’t even parked, in hindsight the land ownership should have made it into my POPLA appeal. If I do win I’ll post my response to their evidence pack. But I’m conscious that they could be looking on this site.