PCN from CEL Ltd. Stage 2 Poopla Appeal HELP!

Popcorn141

Hello Everyone,

I received a ‘PCN’ from CE Ltd. on the 23/07/19, following a session at my local gym. I read up on the NEWBIE thread and drafted a soft appeal letter on the 15/08/19 which detailed the following:

Soft Appeal

“RE PCN Number: XXXXXX

Dear Civil Enforcement Ltd,

I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a formal complaint about your predatory conduct to your client landowner and to my MP.

There will be no admissions as to who was driving, and no assumptions can be drawn. Since your PCN is a vague template, I require ALL photos taken and an explanation of the allegation and your evidence, i.e.:

- If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.

- If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner. If you fail to evidence the actual grace period that applies at this site or suggest that only one period applies, this will be disregarded as an attempt to mislead. In the absence of evidence, it will be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with the official BPA article by Kelvin Reynolds about 'observation periods' on arrival being additional and separate to a 'grace period' at the end.

- Proof of your locus standing to offer contracts to drivers at this site and to bring a claim in your own right for this particular contravention. If you are not the landowner, I will need to see a copy of your contract, showing the restrictions, the changes the dates and terms of business including any payments between yourself and your client and the definition if your status as agents or contractors and your assigned rights (if any). Such detail is necessary for me to make an informed decision. Failure to divulge pertinent information and of course, I will require it to be shown at independent appeal stage anyway. A witness statement will not suffice, nor a site agreement with a managing agent or other property who is not the landowner.

- In order for me to consider this as a "contractual charge", then your letter is in effect an invoice for a service received from you. In that event, you must follow the law and supply me with an invoice that complies with Government legislation as laid out in the government requirements here:

https://www.gov.uk/invoicing-and-taking-payment-from-customers/invoices-what-they-must-include

In particular, I draw you attention to the requirements for a simplified invoice of this amount which clearly states that if your company is VAT registered, you must provide me with your VAT registration number, your full business address and the rate at which VAT is being charged or a statement that the service for which you seek payment is VAT exempt. This is in addition to the requirements for all invoices, again covered in the link I provided in (3) above.

I run a business and am able to reclaim all business costs and I require this for my own VAT records as VAT, if applicable, is reclaimable. Without a compliant invoice, I would be unable to consider the matter further and await a revised invoice.

- Your explanation of the consideration that you believe flowed from the driver, and from yourselves. Consideration from both sides is required for a contract.

- In all cases, you must include a close up actual photograph of the sign you contend was at the location on the material date.

- The means to make an appeal to POOPLA. This must not be withheld or delayed, which would be a breach of the Code of Practice.

- In order to resolve the dispute I attach copies of the keepers membership agreement as they were a genuine customer.

Formal note:
Should you later pursue this charge by way of litigation, note that service of any legal documents by email is expressly disallowed and you are not entitled to assume that the data in this dispute/appeal remains the current address for service in the future.

Yours faithfully,
XXXXXX”

Furthermore, the NTK did arrive within the required time period of 14 days. However, the soft appeal was obviously rejected on the 21/08/19 with images of the car entering and exiting as well as a photo of a single sign. Will upload these images separately to this thread

I have been drafting my appeal letter to POOPLA (Deadline Wednesday 18th Sept). which I will post below any thoughts on what else could be included or any rectifications to be made?

KeithP

Pssst... there is only one 'O' in POPLA.

Popcorn141

Appeal re POPLA Code: XXX vs. Civil Enforcement Ltd.

POPLA ref: XXX

Vehicle Registration: XXXX

I, the registered keeper of this vehicle, received a letter dated 18/07/19 acting as a notice to the registered keeper. My appeal to the operator – Civil Enforcement Ltd. (CEL Ltd.) – was submitted and acknowledged on 15/08/19 but subsequently rejected by a letter 21/08/19. I contend that I, as the keeper, am not liable for the parking charge and wish to appeal against it on the following grounds:

1) Grace Period: BPA Code of Practice non-compliance.

2) Lack of entrance signs for regular entry and signs in the car park are not prominent, clear or legible from all parking spaces. Furthermore, there are no marked parking bays at the location nor boundary of the venue.

3) Lack of Evidence of Landowner Authority – the operator is put to strict proof of full compliance with the BPA Code of Practice.

4) 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.

5) No evidence of Period Parked – NtK does not meet PoFA 2012 requirements.

6) 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

7) Vehicle images contained in PCN: BPA Code of Practice non-compliance

8) The ANPR system is Neither Reliable nor Accurate.

9) The Signs Fail to Transparently Warn Drivers of what the ANPR data will be used for.

10) No Planning Permission from Barking and Dagenham Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

11) Business Rates and VAT applicable if the Charges are Contractual Agreements for the Provision of a Service.

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 end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) states that:

“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 that:

“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) states that:

“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. Whilst (13.2) and (13.4) do not apply in this case (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 the British Parking Association (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.”
It is therefore argued that the duration of visit in question (which CEL Ltd. claim was 1 hour and 10 minutes) is not an unreasonable grace period, given:

a) The site is not well lit and relies on nearby street lighting as its primary source of lighting.
b) Visibility was hindered further as the site was at dusk at time of the visit – 17:22:24 to 18:32:08

c) The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.

d) There is no marked parking bay throughout the venue which causes confusion to the applicability of the Smart Parking Ltd’s contract, that was never entered into in the first place.

e) The failure to light signage so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.

f) The lengthiness of Smart Parking Ltd’s signage (in terms of word count) all written in tiny text the across of the sign (see Figure 4).

All factors discussed above serve merely to increase the time taken to:

• Locate a sign indicating entrance

• Locate a sign containing the terms and conditions

• Read the full terms and conditions in the darkness 4

• Decipher the confusing information being presented

• Decide not to park and therefore not entering into a contract

• Return to car and safely leave the car park

Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.” Details of the case can be found here.

2) Lack of entrance signs for regular entry and signs in the car park are not prominent, clear or legible from all parking spaces. Furthermore, there are no marked parking bays at the location nor boundary of the venue.

CEL Ltd.’s main car park signs on the Sterling Industrial Estate off Rainham Road South, Dagenham (the ones displaying terms and conditions) are inadequate and illegible in a number of ways not least because of the sheer amount of text that must be read (see Figure 2).

BPA’s Code of Practice (18.2) 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.”

BPA’s Code of Practice (18.3) states:

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

BPA’s Code of Practice (Appendix states:

“If you think there are other circumstances where it is impractical or undesirable to have an entrance sign, you must tell us in advance and get our approval to amend the sign or not have one.”

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material”

Figure 2 below demonstrates a map of Sterling Industrial Estate via Rainham Road South. Point A is the entrance and Point B is the location of the exit back onto Rainham Road South. Point C is the location of the ANPR, as a result all vehicles passing through Sterling Industrial Estate can potentially be captured by the ANPR and recorded an entry and the exit time (shown on the map as **, if performing a 3 point turn or reversing for example) that are interpreted by CEL Ltd. the “parking time”.

Figure 3. Map of Sterling Industrial Estate

The image in Figure 2 shows a close up of the main car park sign in the same lighting conditions as the date/time for which the PCN has been issued. (N.B. This image was taken whilst standing at ground level looking up from in front. The camera was held above head height so as to capture as close an image as possible, therefore it cannot be assumed that this is the view a person would have when standing below the sign (See Figure 4). It should be emphasised that, when viewed from ground level, the text is even more difficult to read than it is in Figure 2.

Figure 4. Golds Gym, Sterling Industrial Estate, Rainham Road South, Dagenham, RM10 8TX

Figure 5 demonstrates a wider angle of the signs, providing a greater perspective of when cars/vans are parked at the location of the sign shown in Figure 2. Figure 5 demonstrates clear evidence that:

• The sign is positioned above on a wall, making it difficult to read.

• The terms are made even harder to read due to the positioning of vehicles making it very difficult to get close to the sign.

• The sign is not lit (further investigation, confirmed all the signs are not lit) making them to read at dusk/sunset.

All items above indicate the contravention of BPA’s Code of Practice (18.2) which 7 states: “you must also have a standard form of entrance sign at the entrance to the parking area.” and (18.3): “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

Figure 5. Signs along the front of the car park near the main entrance.

Figures 3, 4 and 5 clearly show that CEL Ltd.’s signage does not comply with BPA Code of Practice (18.3), specifically:

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 £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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 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:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.
Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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 sporadically placed, indeed obscured and hidden in some areas. They 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.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more 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 operator’s 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 onerous term, the parking charge itself.

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

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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.''
...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of 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 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables 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, on a lower 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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

When the driver arrived at the car park it was impossible to read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high, on the passenger side of the vehicle, not visible from the drivers side), invisible after dark (not lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle). And the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.

Bearing all the evidence above in mind, there was categorically no contract established between the driver and CEL Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement of the other person is without knowledge of the offer.

3) Lack of 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

Popcorn141

Haha I didn't even realise it was one O :rotfl:

Popcorn141

4) 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:

https://ico.org.uk/media/for- organisations/documents/1542/cctv-code-of-practice.pdf
The ICO’s CCTV Code of Practice makes the following assertions:

“This code also covers the use of camera related surveillance equipment including:

• Automatic Number Plate Recognition (ANPR);”

“the private sector is required to follow this code to meet its legal obligations under the DPA. Any organization using cameras to process personal data should follow the recommendations of this code.”

“If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”

“You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on individuals”

“You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper assessment.”

“If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.”

“Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimize these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.”

“Note:

... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.”

“A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a lawful basis and is justified, necessary and proportionate.”

The quotations above taken directly from the ICO’s CCTV Code of Practice state that if Smart Parking 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 Smart Parking Ltd must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require Smart 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.”

CEL Ltd. has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, CEL 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.

5) 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;”

CEL Ltd.’s NtK simply claims that the vehicle “entered Golds Gym, Sterling Industrial Estate, Dagenham at 17:22:24 and departed at 18:32:08”. At no stage does CEL Ltd. explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

CEL 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. CEL Ltd., however, does not provide any direct evidence of its alleged violation. It is not in the gift of CEL 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, Smart Parking Ltd are not able to definitively state the period of parking.

I require Smart Parking 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

6) 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.''

Furthermore, the NTK did arrive within the required time period of 14 days. However, the soft appeal was obviously rejected on the 21/08/19 with images of the car entering and exiting as well as a photo of a single sign.
I have been drafting my appeal letter to POOPLA. which I will post below any thoughts on what else could be included or any rectifications to be made?

Popcorn141

7) 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 and license plate 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 CEL Ltd.’s ANPR. As a result, these images cannot be used as the confirmation of the incident and CEL Ltd. claim was unauthorised.

I require CEL 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 CEL 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 (http://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 Smart Parking Ltd to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

8) The ANPR System is Neither Reliable nor Accurate

CEL Ltd.’s NtK simply claims that the vehicle “entered Golds Gym Sterling Industrial Estate Rainham Road South, Dagenham, RM10 8TX at 17:22:24 and departed at 18:32:08”. CEL 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:

http://www.britishparking.co.uk/Other-Advice#4

''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:

http://www.britishparking.co.uk/News/excessive-use-of-anpr-cameras-for-enforcement

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.

CEL 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.

9) 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.

CEL Ltd.’s signs do not comply with these requirements because the car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA 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.

10) No Planning Permission from Barking and Dagenham Council for ANPR Cameras and no Advertising Consent for signage

A search in Barking and Dagenham’s borough planning database does not show any planning permission for the ANPR cameras for Golds Gym at the Sterling Industrial Estate, Dagenham 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 CEL Ltd. is/has been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (ANPR cameras) for which no planning application had been made. I request CEL Ltd. provides evidence that the correct Planning Applications were submitted (and approved) in relation to the ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2 , prior to the date to which this appeal relates (18/07/19).

11) Business Rates and VAT applicable if the Charges are Contractual Agreements for the Provision of a Service

CEL Ltd. has failed to include VAT in their charging invoice which further demonstrates that this is not a genuine contractual fee or tariff, but a penalty clause (see attached Figure XXX). When CEL Ltd. were contacted regarding the invoice, CEL Ltd. simply ignored the request and did not reply only provide a copy of an image of the signange. Therefore, they have failed to answer my request for an invoice. CEL Ltd. runs a business the specified location for revenue and profit, and their signage appears to attempt to create a contractual agreement for ‘services’.

I request confirmation from CEL Ltd. that the land is registered at the council as business land and if the PCN in question is a business contract charge not a disguised damages case. Otherwise, I will be making a disclosure in the public interest to HM Revenue and Customs.
CEL Ltd.’s failure to use consistent language to that of the BPA, along with inconsistent language within their own literature is at best a reflection of negligent and sloppy practice, and at worst, it could be seen as a deliberate attempt to frustrate the appeal process with POOPLA. CEL Ltd. cannot have a contract with the driver when they have to satisfy specific conditions, which in this case they did not from the points and evidence raised above. I respectfully ask POOPLA’s assessor to consider my points and photographic evidence and order that this charge be cancelled.

Yours Faithfully,

XXXX

Le_Kirk

KeithP wrote: »

Pssst... there is only one 'O' in POPLA.

Ah! I like it better as Poopla, it made me smile this morning.

MistyZ

Le_Kirk wrote: »

Ah! I like it better as Poopla, it made me smile this morning.

Haha, same here!