Multiple LBBC's

KeithP

TeddyRascal wrote: »

I have now compiled a SAR, and email ready to send off soon.

The email covers the following core points:

Requested sight of agreement between CPP and land owner with authority to form contracts on the land and the right to authorise parking so as to formulate a contractual benefit to the car park user.

Poor signage at car park entrance - the 'Entrance sign' is located further into the car park and another sign relating to ANPR is at the point of entry, with no reference to terms and conditions or a contract.

Unrealistic grace period of 10 minutes given the busy nature of the car park (not really applicable to this case but a definite weakness in the operation here).

Privacy notice on the signage is vague and does not mention sourcing data from the DVLA - car park users cannot be expected to view the full policy online at the point of parking.


Any advice, guidance or additional points to include from the above signage content would be very much appreciated.

Thank you.

None of those four points can legitimately be part of a Subject Access Request.

A SAR is to request personal data held by the recipient.

Nothing you have mentioned here contains your personal data.

TeddyRascal

Thanks Keith. I have compiled a SAR, and seperate email to be sent to CPP.

My previous post is the key points from the email and not the SAR - I haven't copied the contents of the SAR since this is a fairly generic request for data held, none of the above four points are referenced in the SAR.

As per the advice on the Newbies Sticky with respect to a CPP/PE LBBC I have compiled a SAR, ready for submission and I have also compiled an email to be sent to them which will reference the SAR at the beginning before going into the above 4 points as to why proceedings should be dropped.

I was looking for any additional thoughts on the signage wording with respect to the email and not the SAR - so any advice in this area would be really helpful.

Thank you.

Coupon-mad

I'd say it's fine for this stage, and a claim may well arrive anyway so nothing you say can stop that if they are intent on suing. CPP are less litigious than P/Eye though - any chance of the landowner cancelling it at the eleventh hour?

TeddyRascal

Hello, I am pleased to report a successful outcome on this matter, I would like to thank all those who have contributed to the invaluable resource available on PCN's on this forum, with particular thanks to Coupon-Mad for clarifying some key points to aid my approach.

As previously explained I have taken care of this matter on behalf of my partner, who had received a total of 7 LBCC's relating to PCN's for parking in a hospital car park managed by Car Parking Partnership. I will now include some detail in the hope that this information can aid others in a similar situation.

Following submission of a Subject Action Request and a 'last ditch' email to CPP highlighting that any legal proceedings on this matter would be fiercely disputed (with reasons outlined), we received 7 POPLA codes relating to the various LBCC's, which I saw as a bonus having thought that too much time had lapsed to appeal through POPLA.

So, I returned to the forum to research POPLA appeals, and from this research compiled a POPLA appeal to cover all 7 cases (uploaded separately through the online POPLA appeals process), with some minor tweaks on a case by case basis but wholly the same, around the following 4 key points of contention:

No evidence of Landowner Authority
Insufficient signage (with photographic proof)
No evidence of period parked (PoFA 2012 requirements)
Unreliability and inaccuracy of ANPR system

Following submission to POPLA, a little over two weeks passed before we received notification via email from CPP that all 7 parking charges had been cancelled. Tracking the appeals via the POPLA website gives the same result for all of the appeals as follows:

APPEAL HAS BEEN WITHDRAWN BY THE OPERATOR
REASON: CLIENT REQUEST

It's a great relief that this has been resolved but having invested considerable time and effort (particularly in compiling the POPLA appeal), I'm a bit disappointed that CPP withdrew before even submitting their evidence to POPLA! I guess the main thing is that it is over now.

I am happy to submit a copy of my POPLA appeal if this is of use to others, I know the POPLA outcome section on here was of great use to me when drafting.

Thank you again, and good luck with your appeals!

Le_Kirk

Great result and yes please post your happy outcome in the POPLA decisions thread, which is normally the first thread down on the first page of this forum.

TeddyRascal

OK I will post the outcome in the POPLA Decisions thread, there is my POPLA appeal template if it is of use to anybody facing a PCN on hospital grounds:



---START---


PARKING CHARGE NOTICE APPEAL

POPLA CODE: XXXXX

XXXXX Car Parking Partnership/Parking Eye Ltd
Vehicle Registration: XXXXX


I, the registered keeper of this vehicle, received a parking charge notice dated XX/XX/XXXX, acting as a notice to the registered keeper with the alleged parking event dated XX/XX/XXXX,. My appeal to the operator, Car Parking Partnership (CPP) was submitted on XX/XX/XXXX, and subsequently rejected on XX/XX/XXXX,. 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.


1. No evidence of Landowner Authority
2. Insufficient signage at the car park in question
3. No evidence of period parked, PCN does not meet PoFA 2012 requirements
4. The ANPR system is neither reliable nor accurate



1. 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. I have previously made this request in my initial appeal to the operator dated XX/XX/XXXX, but the operator has failed to provide any supporting documentation to this effect.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine visitor' 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 or where they are authorised to act on behalf of the landowner.

It cannot be assumed, just because an agent is contracted to merely erect signage 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 and typically not 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 and basic but crucial information such as the site boundary and any bays where enforcement applies or indeed 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 signs in this car park are not prominent, clear or legible from all parking spaces and the parking terms are not legible.

I note that within the Protection of Freedoms Act (POFA) 2012 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''.

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 minuscule font size of the contractual terms which are illegible in most photographs and do not appear at all at the car park entrance - is NOT sufficient to bring the parking charge or the terms upon which it is enforced to the attention of the motorist, as displayed in the below photographs:


**INSERT IMAGES OF ON SITE SIGNAGE***


The photographs included from this site above demonstrate the unremarkable nature of the signage from the vantage point of a passing vehicle and indeed any nearby parking bay, the photographs also demonstrate the very small type in which the terms of the ‘parking contract’ are bound by – it is clear that the terms upon which the operator formulates contracts are not legible from any reasonable distance. In all cases at this site the signage displaying the relevant terms are very high up which further adds to their illegibility.

In this case 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 this is a major pit-fall in the on-site signage at this location. It cannot be assumed that a driver drove past and could read a legible sign, nor parked near one and was able to easily read and consent to the terms in miniscule type before taking the decision to leave their
vehicle and park.

This is 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 car park and those facts only:


**PASTED TWEET FROM SUPREME COURT**


In the Beavis case, the £85 charge itself was in one of the largest type sizes on the sign with a contrasting colour background (orange) and the signage was far less cluttered than those at the site in question. According to the judges there were also 'large lettering' signs at the entrance and all around the car park, which is not true of the site in question here.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:


**INSERT BEAVIS CASE SIGNAGE EXAMPLE**




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 mounted high on posts, 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.


The entrance signage at this particular location is not attention grabbing given the busy surroundings, does not highlight a £100 charge, nor does it include any specific detail with respect to the contractual terms and conditions, Section 18.2 of the BPA CoP states:

Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use. A standard form of entrance sign must be placed at the entrance to the parking area. There may be reasons why this is impractical, for example:

• when there is no clearly defined car park entrance
• when the car park is very small
• at forecourts in front of shops and petrol filling stations
• at parking areas where general parking is not permitted


At this location the sign which constitutes an ‘entrance sign’, is not immediately obvious due to other, more prominent surrounding traffic signs as well as another of the operators ANPR signs directly opposite. A driver entering a busy hospital car park cannot be expected to see and absorb the information printed on an entrance sign which is not legible at the speed at which a vehicle would enter the car park and when there are other, much more prominent signs in the vicinity. I put the operator to strict proof the entrance signage at this location can be fully read and understand from the driver’s side of a vehicle entering the car park and that the BPA have assessed and approved this entrance signage configuration by means of written documentation to this effect.


This case is similar to the signage in POPLA decision 5960956830 on 2.6.16, 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 important element, the contract terms themselves.


The letters seem to be no larger than .40 font size going by this guide:

**LINK TO ONLINE FONT SIZE TOOL**


As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

**LINK TO SIGNAZON GUIDE**


''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.''

Under Lord Denning's Red Hand Rule, the contract 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 the ParkingEye Vs Beavis case. A reasonable interpretation of the 'red hand rule', the signage visibility information 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 at this location, on a lower, well-lit 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' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

**LINK TO CASE LAW**


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 this operator 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. 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 as every car parking scenario is different.




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;”
Car Parking Partnership’s NtK simply claims that the vehicle “ entered XXXXX at XX/XX/XXXX, and departed at XX/XX/XXXX,”, with a “Time in Car Park” of XX hours XX minutes. At no stage does Car Parking Partnership explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.
Car Parking Partnership 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. Any vehicle passing by will be captured by ANPR. Car Parking Partnership, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Car Parking Partnership to substitute “entry/exit”, “length of stay” or “time in car park” 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, Car Parking Partnership are not able to definitively state or prove the period of parking.
I require Car Parking Partnership 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.




4. The ANPR System is Neither Reliable nor Accurate

Car Parking Partnership’s PCN simply claims “that the vehicle “entered XXXXXX XX:XX:XX and departed at XX:XX:XX”, with a “Time in Car Park” of XX hours XX minutes. Car Parking Partnership 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, the BPA even warned about ANPR flaws:


**LINK TO BPA BLOG POST**
''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 TO BRITISH PARKING BLOG POST**

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.
Car Parking Partnership is put to strict proof that the system is accurate, by means of written proof by an independent, third party assessment with no vested interest in the parking activity at 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.



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