ECS PCN - draft to appeal help

Martinez83

2. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

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

2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, 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 NTK.

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 'NTK' 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.''

3. 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) 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:
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 Ltd 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 Ltd must regularly evaluate whether it is necessary and proportionate to continue using it.
It therefore follows that I require Euro Car Parks 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.
Euro Car Parks Ltd has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Euro Car Parks Ltd 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.

4. 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 Ltd’s NtK simply claims that the vehicle “entered Car Park at xxxx and departed at xxxxx”. At no stage does Euro Car Parks Ltd explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.
Euro Car Parks Ltd 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 Ltd, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Euro Car Parks Ltd 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 Ltd are not able to definitively state the period of parking.
I require Euro Car Parks Ltd 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.

5. 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 close-up license plate images. The time and date stamp have been inserted above (but not part of) the images. Given the vast area that has neither been bounded nor marked as parking restricted, any vehicle passing by can be captured by Euro Car Parks Ltd’s ANPR. As a result, these images cannot be used as the confirmation of the incident and Euro Car Parks Ltd claim was unauthorized.
I require Euro Car Parks Ltd 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 passing by. Given the unbounded nature of the venue, failing to produce such evidence would indicate the Euro Car Parks Ltd has been using ANPR to engage random license plate collection of all vehicles passing by and send NtK with the aim to extract penalty. Such action is no different from sticking parking tickets to all vehicles passing by.
Recent investigation (27 Apr 2018) by BBC 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 Ltd to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

6. The ANPR System is Neither Reliable nor Accurate

Euro Car Parks Ltd’s NtK simply claims “that the vehicle “entered Car Park at xxxxx and departed at xxxxx”. Euro Car Parks Ltd states the images and time stamps are collected by its ANPR camera system installed on site.
In terms of the technology of the ANPR cameras themselves, POPLA please take note and bin your usual 'ANPR is generally OK' template because:
The British Parking Association DOES NOT AUDIT the ANPR systems in use by parking operators, and the BPA has NO WAY to ensure that the systems are in good working order or that the data collected is accurate. Independent research has NOT found that the technology is 'generally accurate' or proportionate, or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks.
As proof of this assertion here are two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits:
Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says:
"You were concerned about a comment from the POPLA assessor who determined your case which said:
"In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate"
You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us. This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to.
POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:
''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.''
Our auditors check operators compliance with this Code clause and not the cameras themselves.''
Secondly, ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question.
The BPA even warned about ANPR flaws:
''As with all new technology, there are issues associated with its use'' and they specifically mention the flaw of assuming that 'drive in, drive out' events are parking events. They state that: ''Reputable operators tend not to uphold charge certificates issued in this manner''.
In this case, as the driver drove in and briefly stopped where there are no signs or bays at all (not in any retail area, but at a private residence not signed as being managed by Smart Parking) the ANPR system has indeed failed and the operator has breached the first data protection principle by processing flawed data from their system.
Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO:
As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO when the public, or groups, make complaints.
Euro Car Parks Ltd is put to strict proof that the system has not failed visitors to the residential homes within this site.
POPLA cannot use your usual 'the BPA audits it' erroneous template which needs consigning to the bin.
Please show the above email from Steve Clark, to your Lead Adjudicator.
Kindly stop assuming ANPR systems work, and expecting consumers to prove the impossible about the workings of a system over which they have no control but where independent and publicly available information about its inherent failings is very readily available.

7. The 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 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 Ltd’s signs do not comply with these requirements because these 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 CoP and Consumer law.
There is no information indicates that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices.

8. No Planning Permission from Council

Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage
A search in Manchesters planning database does not show any planning permission for the pole-mounted ANPR cameras for the Car Park, nor does it show any advertising consent for signage exceeding 0.3m2.
UK government guidance on advertisement 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.”
This clearly proves Euro Car Parks Ltd is/has been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.
I request Euro Car Parks Ltd provides evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2 prior to the date to which this appeal relates (Date)

9) Non-Compliant Notice to Keeper

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is subject to the creditor meeting all of POFA’s requirements.
I set out below a non-exhaustive list of reasons why Euro Car Parks’ Notice to Keeper failed to comply with Schedule 4 of POFA:

Contrary to the requirements of Paragraph 9(2)(b), the Notice to Keeper did not inform the keeper that the parking charges have not been paid in full. In addition, contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). It simply includes a date, suggesting when the notice was produced. Also, and most importantly, contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not specify the period of parking to which it related. It merely provided the dates and times when the vehicle allegedly entered and exited the car park; these times do not equate to the period of parking.

Taking all that into account I would politely ask for my appeal to be granted.

Kind regards,

XXXXX

Martinez83

That's as much as I could gather.

Now - as for the popla - how am I supposed to fit that all in the appeal box when it actually allows me only to use 2000 characters?

Coupon-mad

Search the NEWBIES thread for 2000 characters. Control & F.

Martinez83

Thanks - I thought this may be the case. Is it worth me waiting for someone to comment or should I just fire the pdf to popla?

Coupon-mad

Hang on for us to look at it.

But no sweat, if it loses, so what? It's only ECP and no-one pays them.

Have you completely EXHAUSTED the complaint to the landowner/retailer CEO? Gone to the top?

Far more success than POPLA.

Martinez83

Landowner - was unable to find out who is that.

Retailer - haven’t succeeded locally nor through customer services but I must admit I haven’t gone to CEO.

MP - no response from her unfortunately.

KeithP

Martinez83 wrote: »

Landowner - was unable to find out who is that.

You could try asking the local council who pays the non-domestic rates on the property.

My local council has a spreadsheet on their website listing all premises where NDRs are payable and who pays them.

Alternatively, you could invest £3.00 and ask HM Land Registry.

Martinez83 wrote: »

Retailer - haven’t succeeded locally nor through customer services but I must admit I haven’t gone to CEO.

Then surely Head Office and CEO is your next step?

Martinez83 wrote: »

MP - no response from her unfortunately.

Then keep chasing.

Coupon-mad

Martinez83 wrote: »

Landowner - was unable to find out who is that.

Retailer - haven’t succeeded locally nor through customer services but I must admit I haven’t gone to CEO.

MP - no response from her unfortunately.

You have 32 days to use a POPLA code so hopefully loads of time from that rejection letter/email date. Get an email to the retailer CEO now, this week!

Read the 'Successful complaints about PPCs' thread linked in the NEWBIES. I just added 3 more successes there at the end where people had to try more than once and go to a CEO before it was cancelled. They tried & tried and got cancellations.

So can you.

Forget POPLA for now.

Diarise day 32 from the rejection, and make 'cancellation by complaint' your mission.

I promise you POPLA codes last 32 days (not just 28) and I beg for no-one to post disagreeing! That's just tedious and already done to death on here, not up for discussion again! We know what we are talking about.

Martinez83

28 or 32 days - it doesn’t unfortunately really matter in our case - we have received the appeal rejection letter nearly 4 weeks ago while being outside the country for short holidays and the personal reasons so we have lost a lot of time...Hence popla is our only choice now...

Coupon-mad

Nope, if it's still got several days until day 32, you could have this cancelled this week, with an angry phone call tomorrow (or email tonight to the CEO).

CEO's assistants normally reply within 48 hrs.