PCN for parking on private land for 4-5 mins

Redx

Report them to the BPA due to a lack of a popla code in the rejection letter

Give the BPA copies of all correspondence

Fruitcake

How did you get on with your initial complaint to the BPA about the misleading wording of the NTK saying a motorist must provide the driver's identity?

Refer to that complaint in your second complain about no PoPLA code. 

Coupon-mad

Are you SURE that nowhere in the headings or refs of that rejection letter, there isn't a 10 digit number?

jalakmody

I complained to BPA but no reply yet. I did receive POPLA code. Apologies for not reading the letter correctly. Please direct me to the MSE link for an appeal on POPLA. Thank you.

Fruitcake

The PoPLA appeal templates are in the third post of the sticky thread for NEWBIES.

Use all the ones that are relevant and post your draft here for checking before you submit it.

I already told you this over a month ago in the first post you received after you started this thread.

"Read up on what to do next if/when it is rejected. PoPLA is where you will win. The usual PoPLA appeal points can be found in the third post of the NEWBIES."

How long ago did you receive the PoPLA code? You should not be getting reminders if you are still within the 32 days that the PoPLA codes last.

Did you complain to the general BPA email address, or to Gemma Doran as advised to do?

Umkomaas

You need to crack on with your POPLA appeal. I gave you your 'get out of jail free card' in my post 01/07/20 @ 6.18pm. Major on that key, irrefutable point, then fill up the rest of the appeal with the ready-prepared templates from the NEWBIES FAQ sticky, third post.  

Whatever you do, do not miss your POPLA deadline, otherwise you face 6 years of potential hassle and uncertainty. A house move during those 6 years will bring in an added potential threat to you. 

Coupon-mad

Show us your draft POPLA appeal before you submit it. 
Use post #3 of the NEWBIES thread (we are not linking it).

jalakmody

Here is the draft.  Please advise me further. Thank you.

1.                  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!!!8217;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!!!8217;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!!!8217;s Office that the BPA!!!8217;s Code of Practice (21.4) refers to is the CCTV Code of Practice found at:

https://ico.org.uk/media/1542/cctv-code-of-practice.pdf

The ICO!!!8217;s CCTV Code of Practice makes the following assertions:
"This code also covers the use of camera related surveillance equipment including:

!!!8226;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!!!8217;s impact on people!!!8217;s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a !!!8216;Conducting privacy impact assessments code of practice!!!8217; 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!!!8217;s CCTV Code of Practice state that if NCP 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 NCP must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require NCP to provide proof of regular privacy
impact assessments in order to comply with the ICO!!!8217;s CCTV Code of Practice and BPA!!!8217;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!!!8217;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!!!8217;s requirements in practice. You should:

!!!8226;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!!!8217;s right of subject access."

NCP has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, NCP 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!!!8217;s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the BPA!!!8217;s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper!!!8217;s data unlawful.
As such, given the omissions and breaches of the ICO!!!8217;s CCTV Code of Practice, and
in turn the BPA!!!8217;s Code of Practice that requires full ICO compliance as a matter of law.

2.                  A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.
The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NtK fails on the 9 (2) (f) warning also it mentions…..

 

.... "if after 29 days we have not received full payment, we have the right to recover the parking charge amount that remains unpaid from the driver of the vehicle".

 

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

3. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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. 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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.''

nosferatu1001

Why start with DPA? Never gonna fly at POPLA any longer. Theyre incompetents
So just essentially a single point appeal? Brave. 
I would always include signage and landowner authority as points. 

jalakmody

I have added few more to it. I have attached it as it wont allow me to paste here. Please review it. Thank you again.