POPLA appeal - PE

mazdamad

Appeal as follows:
I am the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1.    No grace period given

2.    Obscure signage and not seen so no contract could be entered into or formed

3.    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

4.    No evidence of landowner authority

5.    The ANPR system is unreliable and inaccurate

1. No Grace Period given

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our 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,” he explains.

“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.”

(a) On arrival - the 'observation period':
There was traffic build up on entering this car park, because it is single lane entry/exit, and this access is off a busy main road. Vehicles were entering and leaving all at the same time and there is always a traffic jam at this site when entering and leaving. There is also a fairly restricted width of the car park spaces, causing difficulties in waiting for cars to manoeuvre to park or leave spaces, then difficulties for the driver in then parking their own car.

I am a witness to this as I was an occupant of the car as well as its keeper. I can assert that it took 5 - 6 minutes before we were able to park, and at no time did we read any term that told us that the 'observation' time had actually started when we were in the queue and not even past the entrance threshold.

Even if it had said that, observation and grace periods must still be factored in, given the facts relating to each site, and 5 - 6 minutes is a reasonable grace/observation period to enter this car park, then queue behind the drive-thru traffic and give way to exiting cars before reaching one of the small spaces, then carefully park, then finally seek out one of the ludicrously high new signs not legible from the drivers seat and read it, which is the only point at which any contractual parking licence may have started (only when the driver has had a fair opportunity to read the terms and decide whether to stay, as Kelvin Reynolds stated).

Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected (new terms for this site) and onerous. POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes. In this case, therefore, the 5 - 6 minutes taken before being able to park and read the new signs at this particular site is a reasonable period.

(b) On leaving - the 'grace period'
BPA's Code of Practice (13.1) states: ''The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes''

BPA (13.3) reiterates this fact: ''Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.''

Given the timings shown by the images (and subtracting the reasonable time explained above, on arrival) the operator is alleging that the driver exceeded the parking time after the end of the parking event, by 6 - 7 minutes. This is explained by the narrow entry/exit lanes and spaces and the queues for the shared drive-thru entry, meaning that even when a driver gets back to their car on time, they are prevented from leaving immediately due to the queues and restricted space in this site. Furthermore, traffic buildup on the main road out of the car park exit also causes the queues within the car park to build moreso. As I was an occupant of the car I can attest that this was the case on the material date and that the driver did not actually park in a space for more than 90 minutes, thus there was no parking contravention at all.

I have also uploaded an aerial map of this car park and drive-through, to illustrate my point.

(google maps satellite view of car park showing single lane entry/exit)

The Operator has displayed on their PCN only the entry and exit times from the car park. These are not the 'period of parking' although the law requires this to be stated, and to any right-thinking person the only reason for this is to engineer an 'outrageous scam' (Hansard 2.2.18 - the views of MPs during the Parking CoP Bill reading) by misleading POPLA. Taking into account the travel time to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory observation and grace periods as outlined above.

As such, 6 - 7 minutes is a reasonable grace period to exit the car park after the parking contract has ended. The parking operator has issued the parking charge notice incorrectly. Accordingly, POPLA must allow this appeal.

mazdamad

2.    Obscure signage and not seen so no contract could be entered into or formed

As per NEWBIES template - Signage (I deliberately go to town in this section, don't cut it down!):

http://forums.moneysavingexpert.com/showpost.php?p=71285691&postcount=2341

3.    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

As per NEWBIES template - The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
http://forums.moneysavingexpert.com/showpost.php?p=71287626&postcount=2342

4.    No evidence of landowner authority

As per NEWBIES template - No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
http://forums.moneysavingexpert.com/showpost.php?p=71287628&postcount=2343

mazdamad

5)The ANPR System is Neither Reliable nor Accurate

Paragraph 22.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require ParkingEye Ltd to provide records with the location of the cameras used in this instance together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the (as yet unseen) “photographic evidence” to ensure the accuracy of the ANPR images. In terms of the technology of the ANPR cameras themselves, The BPA does not audit the ANPR systems in use by parking operators, and the BPA 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. 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 BPA 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 22.3 of the BPA Code which says:

“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..''

ICO’s CCTV Code of Practice state that if ParkingEye 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 Civil Enforcement must regularly evaluate whether it is necessary and proportionate to continue using it. It therefore follows that I require The Operator to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV COP and BPA. I also require the outcome of 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.”

The Operator has not stated clearly on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). This is a mandatory requirement of the ICO’s CCTV COP (5.3 and 7.6) which in turn is mandatory within the BPA’s COP and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful.

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

I contend that if the vehicle was in fact parked for the period stated by the Claimant, it clearly was not in breach of the parking terms and conditions, as it was in accordance with the Grace Period permitted by the BPA Code of Practice.

1505grandad

"BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.

What is BPA(18.5)?

mazdamad

1505grandad said:

"BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.

What is BPA(18.5)?

Hi, I've edited the posts to be accurate with current BPA code of practice numbering. 

1505grandad

"BPA (A8.4) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''."

Not sure what you are looking at BPA (A8.4) of Version 8 deals with data, not Grace Periods

mazdamad

1505grandad said:

"BPA (A8.4) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''."

Not sure what you are looking at BPA (A8.4) of Version 8 deals with data, not Grace Periods

I read  a A8.4 as the following:
"If a driver is parking with your permission,  they must have the opportunity to read the terms and conditions before they enter into the 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."

I assumed this was relevant to the grace period appeal point but if not I can remove it. I wasn't sure.

mazdamad

Hi, don't mean to push just wanted to ask what other changes I should make to my POPLA appeal to improve it. 28 days to appeal will be up on the 19th Feb so would like to get it as correct as possible. 

mazdamad

I've made a couple changes and took out some mistakes, if anyone could do a once over of the appeal please as I need to send it off before the 28 days is up. Thanks all

mazdamad

Hello again everyone. I sent off my POPLA appeal as above posts and Parking Eye have sent a pack of evidence back to which POPLA say i need to respond to within 7 days. I believe I need to make comments about the lack of landowner authority contract evidence and comments on how their signage has mixed font sizes making it impossible to read from a car. Should I also say something regarding grace periods as one of my appeal points was regarding 2 grace periods one on entry and exit of 5-7 minutes should be allowed?

The summary of their responses (as per their evidence) is as follows:
Rules and Conditions
This site is a Paid Parking car park as clearly stated on the signage (enclosed). We have included a signage plan showing that there are signs situated at the entrance, exit and throughout the car park displaying the terms and conditions of the site.
Evidence G
System generated print out showing that the motorist’s vehicle registration number does not appear in our systems on the date of the event.
Authority
ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent). It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.
Grace Period
Clause 13.2 of the BPA code of practice states ’…you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken’. ParkingEye can confirm a grace period is given to all motorists before a Parking Charge is issued. In relation to clause 13.4, which states: ‘You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action’, this does not mean that a second grace period must be given. The BPA has confirmed that only one grace period ought to be applied per a motorist’s stay onsite. ParkingEye can confirm that the grace period on site is fully compliant with the BPA code of Practice.
Further Information
ParkingEye ensures that all its signage is clear, ample, and in keeping with the British Parking Association (BPA) regulations. The signage at this site demonstrates adequate colour contrast between the text and the backgrounds advised in the BPA Code of Practice, you will note the colour contrast at this site is black text on white background. 

They have uploaded copies of all correspondence and photographs of the signage as follows: