POPLA appeal Fistral Beach Newquay, Initial

secret_ID

I have received a NTK from Initial for Fistral Beach in Newquay, from half term the other week.

A 3 hour ticket was purchased approx 15 minutes after Initial's entry photo (queuing, finding a space, faffing with kids, finding change for machine, reading signage etc) but there was another 20 minutes or so between the expiry of the ticket and the exit photo (faffing with kids!!)
Based on this https://imgur.com/a/c5XMstZ from kml's recent case
my thoughts are this
1. Grace Period - whilst the discrepancy between parking payment and time spent on the premises essentially boils down to this my guess is that POPLA wont uphold an appeal on this basis due to the longer than usual time frames?

2. Signage - I dont have evidence of these besides that provided by Initial and linked to above. I live too far from the site to go and take any. There were plenty of signs around but they certainly didnt make it clear that pay and display would be linked to camera images on entry and exit. Initial provided kml with a plan of their signage and one photo. I plan to request photographic evidence of each one as the plan proves nothing on its own. The car was parked fairly centrally well away form the sign they have provided a photo for and a different machine was used to that shown in their photo. The driver doesnt recall the exact signage near the ticket machine that was used and presumably Inital can be asked to provide evidence of this exact signage. Hopefully as they are based in Birmingham they dont have this and it is also too far for them to make the trip to take them

3. Landowner authority - based on the 'contract' they provided kml this seems to be the winning point to my mind. Its not signed by 2 parties from each side, there is no printing of the names by illegible signatures and perhaps most crucially shows no end date. From what I have read, neither kml nor MinnieSox9 really laboured these points with POPLA and the contract was accepted as proof of authority.

4. POFA 2012 - Unfortunately they were very timely, well within the 14 days so no joy there

5. No evidence of period parked - this doesnt seem to have held mush sway with POPLA in recent Fistral cases but I'll include it

6. Vehicle images non compliant - Initial seem to supply full images later but again I will include this

I will probably include points 4 and 8 from here https://drive.google.com/file/d/1v_W_UseWdI_d_9WWMUfVecx0uDUYOwKs/view also

If any of you helpful folk can share their thoughts with me on the above I will work them into a draft.

Many thanks

Fruitcake

secret_ID wrote: »

I have received a NTK from Smart for Fistral Beach in Newquay, from half term the other week.

Smart Parking don't mismanage Fistral Beach any more. Is this an old ticket or is from Initial Parking who have run it from earlier this year?

Once you have worked out who you are dealing with please correct your post accordingly.

Redx

As above both Parking Eye and Smart no longer manage Fistral beach

There are plenty of Initial signs on the net , no need to go back

secret_ID

Sorry, I dont know where I got smart from as I got it right in the title and the rest of the post, its definitely from Initial. Ive ammended the first line of my post

Redx

Use grace periods anyway as it's a popular attraction so delays are common on arrival and departure

Query signage , regardless

Query landowner authority , regardless

Check if POFA was complied with or not due to appealing as keeper , check wording as well as the 14 days , the 14 days is only one aspect of pofa

Etc

If you had Smart in your head you have been reading old threads

Fruitcake

1) I doubt you will get anywhere with grace periods with a total stay exceeding 21 minutes unless you can prove the driver was going round the car park looking for a space, or needed extra time because an occupant was disabled, or the driver was dealing with some other small vicissitude such as a flat tyre or breakdown or an occupant needing medical assistance.

2) From memory the signage was not good so definitely use the long Inadequate signage point from the NEWBIES and put in the signs from other threads. It's up to them to prove they were adequate.

3) I have suggested on several threads about Fistral that no contract with the landowner should be point 1 because it does not meet the requirements of the Companies Act 2006 as you already mention.
Whether PoPLA will agree is another matter, but a judge might so the earlier you mention it the better.

4) I think the NTKs are now PoFA compliant, but double check the wording gainst the strict requirements of the PoFA 2012 to make sure.

5) Always include the failure to include the period parked, and quote the relevant PoFA paragraphs.

6) Without seeing the images we can't comment.

Yes, include 4 and 8 from your link.

Check with the council to see if the PPC have planning permission for the scameras and advertising consent for the signs. Not having the latter is a criminal offence, but I believe only the council can take action. Include the point at PoPLA if they haven't got approval and also complain to the council.

In all cases everyone should complain to their MP about this unregulated scam before they resign. If they are up for re-election then hint that their help might sway family votes in their direction.

secret_ID

I have had this back as unsuccessful today. It seems as though the assessor has taken no account at all of my comments on Initial's evidence (identical to what they used here https://imgur.com/a/c5XMstZ) most notably the lack of end date on the 'contract' as well as other ways it doesnt qualify as a legally binding contract.Also the fact that they supplied one photo of a sign and a picture of supposed locations of other signs which cant possibly qualify of evidence of signage.
On the portal I cant see any record of the comments although it does say they received them. Frustratingly I didnt save a copy of these comments for myself as I didnt realise they wouldnt be visible on the portal.
What avenues exist to take this further?

secret_ID

This was my appeal

POPLA ref: 4063109007
I, the registered keeper of this vehicle, received a letter dated 1/11/19 acting as a notice to the registered keeper. My appeal to the operator – Initial Parking Ltd – was submitted and acknowledged on 5/11/19 but subsequently rejected by an email dated 6/11/19. 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 - the operator is put to strict proof of full compliance with the BPA Code of Practice

2. Insufficient signage - The signs in this car park are not prominent, clear or legible from all parking spaces and payment machines. There is insufficient notice of the role of ANPR data to issue a parking charge.

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

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

5. 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

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

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 I require that they produce a complete and unredacted copy of the contract with the landowner.

The contract and accompanying '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, when and where.
The contract must meet all the requirements of the Companies Act 2006 to be considered valid in law:
44. Execution of documents

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.

(2) A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)—
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

https://www.legislation.gov.uk/ukpga/2006/46/section/44

It cannot be assumed, just because an agent was once contracted to 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. Insufficient signage - The signs in this car park are not prominent, clear or legible from all parking spaces and payment machines. There is insufficient notice of the role of ANPR data to issue a parking charge.
Photo of sign that Initial send in their evidence pack was included here. Taken from kml's case

Evidence of the inadequate signage detailing the terms of the parking charge. Note that other payment machines are not accompanied by any visable terms and conditions.

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 terms and conditions, which is illegible in most photographs and are not clearly displayed beside all payment machines- is NOT sufficient to bring the parking charge for remaining on the site for longer than the time purchased according to entry and exit ANDR data

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 'Parking Eye 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 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 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

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 both from the bay the car was parked in and the payment machine from which payment was made. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. 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.

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 and/or queuing to exit the car park during a busy half term holiday period.

Furthermore, 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;”

Initial Parking’s NtK simply claims “Location: Fistral Beach, Newquay”

The NtK separately states “Entry Details: 27/10/2019 at 11:56:48” and “Exit Details: 27/10/2019 at 15:32:11”. Initial Parking at no point explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

Initial Parking’s reply to my appeal states “The terms and conditions of the scheme at this location state that a valid payment must be made for the length of time the vehicle is parked on site. On 27/10/2019, the vehicle was parked without sufficient payment being made. This was a breach of these terms and conditions

By virtue of the nature of an ANPR system recording only entry and exit times, Initial Parking are not able to definitively state the period of parking.

I require Initial Parking to provide evidence to show the vehicle in question was parked on the date/time (for a duration in excess of my 3 hour payment) and at the location stated in the NtK.

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

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. 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 PCN in question contains two close-up images of the vehicle number plate and two pictures of the front and rear of the car. Neither of these images contains a date and time stamp “on the photograph” nor do they identify in any way that the vehicle was entering/leaving this car park. They could have been taken literally anywhere.

The time and date stamp has been inserted into the header of the letter above (but not legibly part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Initial Parking Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp “on the photograph” and including evidence to indisputably relate these photos to the location stated.

5. 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 ecommendations 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 Initial 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 Initial Parking Ltd must regularly evaluate whether it is necessary and proportionate to continue using it.
It therefore follows that I require Initial 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.”

Initial Parking Ltd has not stated on their signage a Privacy Notice explaining the keeper’s right to a Subject Access Request (SAR). In fact, Initial Parking Ltd has not stated a Privacy Notice or any wording even suggesting the keeper’s 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.

6. 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 you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for”
Initial Parking 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.

secret_ID

Unsuccessful
Assessor Name
Ashlea Forshaw
Assessor summary of operator case
The parking operator has issued a Parking Charge Notice (PCN) to the motorist for, “unpaid tariff time”.

Assessor summary of your case

The appellant has raised more than one ground of appeal. The appellant has said the following: 1. No Evidence of Landowner Authority. 2. Insufficient signage. The signs in this car park are not prominent, clear or legible from all parking spaces and payment machines. There is insufficient notice of the role of ANPR data to issue a parking charge. 3. No Evidence of Period Parked, the notice to keeper does not meet PoFA 2012 requirements. 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. The appellant has uploaded a document which explains each ground of appeal further.

Assessor supporting rational for decision

The appellant has appealed as the keeper of the vehicle. Therefore, I will be considering keeper’s liability in this case. For the operator to transfer liability from the driver to the registered keeper, the operator must issue a notice to keeper under the Protection of Freedoms Act (PoFA 2012) and must comply with schedule 4 paragraph 9. Having reviewed the notice to keeper provided in this case, I am satisfied that PoFA 2012 has been met. Therefore, the keeper can now be held liable for any unpaid parking charges. The terms and conditions of this car park state, “Parking Tariffs Apply, all day £8.50…failure to comply with the terms and conditions will result in the issue of a £100 parking charge notice”. The parking operator has issued a Parking Charge Notice (PCN) to the motorist for, “unpaid tariff time”. The operator has provided copies of its signage displayed at the site, along with a site map. Further, the operator has provided still camera images which were taken by the Automatic Number Plate Recognition (ANPR) cameras. The images show the appellant entering the site at 11:56 and exiting at 15:32, totalling a stay of three hours and 35 minutes. The operator has provided a transaction report, showing that a payment covering three hours parking was purchased by the appellant that day. The appellant has overstayed this period by 35 minutes. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests the terms have not been met. I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice. The appellant has raised more than one ground of appeal. Therefore, I will be addressing each ground for appeal on its own individual merit. 1. No Evidence of Landowner Authority. Section 7 sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” The operator has provided evidence of a contract. I am satisfied that the appellant was parked within the boundaries of the site and so, was bound by the terms and conditions. The operator has proven that they have authorisation to manage on this land and to issue PCNs where it is deemed necessary. Section 7 has been met. 2. Insufficient signage. The signs in this car park are not prominent, clear or legible from all parking spaces and payment machines. There is insufficient notice of the role of ANPR data to issue a parking charge. Section 18.1 of the British Parking Association (BPA) Code of Practice which states, “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are”. The operator has evidenced the signage at the site and has provided a site map indicating where the signs are located. Having reviewed the signage, I am satisfied that the appellant was afforded plenty of opportunity to read the terms in place. There are two payment machines located on site, and an entrance sign is clearly displayed. The appellant has in fact made a payment in this car park therefore, they have read the terms. I must also note that a camera logo is displayed on the signage which advises that this car park is monitored. Further ‘terms and conditions’ are displayed on a separate sign, which advises of the use of the cameras. 3. No Evidence of Period Parked, the notice to keeper does not meet PoFA 2012 requirements. Firstly, I must note that PoFA 2012 has been considered and has met the requirements. Therefore, I do not need to consider PoFA 2012 any further. The appellant has said that there is no evidence that the vehicle was parked versus attempting to read the terms and conditions before deciding against the parking and queuing to exit the car park. All motorists are given a reasonable period to enter a car park, review the terms and to decide if they wish to stay or go. On this occasion, the appellant has been captured remaining on site for three hours and 35 minutes. This is considered as parking. The appellant has also made a payment for three hours parking that day and as such, it is clear that they intended to stay on site. 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. Any concerns regarding the operator failing to comply with the ICO code of Practice will need to be raised to the operator directly, or the ICO. This is not an issue POPLA can become involved in. The appellant has also provided additional comments to POPLA after reviewing the operator’s case file. The appellant has raised further concerns with the grounds they raised and the evidence that has been provided by the operator. However, I am satisfied that I have addressed all grounds and so, the comments do not require any further consideration. Ultimately, the appellant is to pay for the full duration that they stay at the site. On this occasion, the appellant paid for three hours but overstayed by 35 minutes and did not make an additional payment to cover the overstay. This breached the terms on the signage. I therefore conclude that the PCN has been issued correctly and so, this appeal must be refused.

secret_ID

It seems as though the assessor has made no reference at all to the comments I made regarding the significant problems with the contract and signage evidence supplied by Initial.

Is it possible that these comments havent even been viewed in assessing the case?

The_Deep

Have you read this?

http://parking-prankster.blogspot.com/2014/03/waiting-for-space-is-not-parking.html

Has anyone been taken to court wrt a parking incident at Fistral Beach? There have been so many false tickets issued here that surely every judge in the land must be aware of the scam.

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, Te MP fpr Newquay, Trading Standards and the Newquay tourist office.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]