Fistral beach - Initial Parking - POPLA Appeal advise
EthanT72
Forumite 6 Posts
Hi All,
This appeal process is all very new and disillusioning for me so please bare with if I have made any mistakes or jumped any sections, I have attempted to do everything in order to avoid wasting peoples time, but really after some advice on the whole thing.
So we received two Parking charge Notices for the 18th and 19th of July 2020.
NTK - 18th - 12:57:30 - 18:20:59, I have checked the app and we paid – 13:02-15:03 15:05-18:07. So I make it as an arriving deficit of 5 mins and a leaving deficit – 13 mins.
NTK - 19th - 10:32:12 – 16:52:21, I have checked the app and we paid – 10:50 – 16:45, so I make it an arriving deficit - 18 mins and leaving deficit – 7 mins .
I have appealed both directly and both have been rejected using the template found on here. I believe I am now at the POPLA stage and have written a draft however as i have just joined i don't think i am allowed to post it.
If anyone does read the whole thing, thanks very much in advance.
This appeal process is all very new and disillusioning for me so please bare with if I have made any mistakes or jumped any sections, I have attempted to do everything in order to avoid wasting peoples time, but really after some advice on the whole thing.
So we received two Parking charge Notices for the 18th and 19th of July 2020.
NTK - 18th - 12:57:30 - 18:20:59, I have checked the app and we paid – 13:02-15:03 15:05-18:07. So I make it as an arriving deficit of 5 mins and a leaving deficit – 13 mins.
NTK - 19th - 10:32:12 – 16:52:21, I have checked the app and we paid – 10:50 – 16:45, so I make it an arriving deficit - 18 mins and leaving deficit – 7 mins .
I have appealed both directly and both have been rejected using the template found on here. I believe I am now at the POPLA stage and have written a draft however as i have just joined i don't think i am allowed to post it.
If anyone does read the whole thing, thanks very much in advance.
Thanks
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I hope you have downloaded and read the BPA CoP on grace periods ? Clause 13
Plus I hope you have checked for POFA compliance too ?
Waiting for a space and being prevented from exiting promptly at that site firm part of the extended grace periods , so think carefully as to why each delay occurred
Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
Have a look at this thread about Fistral beach.
https://forums.moneysavingexpert.com/discussion/6027099/fistral-beach-newquay-inital-parking-please-help/p1
I have included comments about the contract provided by another poster in a post I made on the 27th of August at 11.23 am.
In both cases the PoPLA assesor couldn't count to 14.
Check very carefully whether your NTK is PoFA compliant. It is crucial that the driver's identity is never revealed.
Construct a draft PoPLA appeal using all the template points available to you from the third post of the NEWBIES and post it here for comments before submitting it.
Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs, and in some cases, cancellation.
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 later this year,
Just as the clampers were finally closed down, so hopefully will many of these companies, 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.
http://www.legislation.gov.uk/ukpga/2019/8/contents/of these Private Parking Companies.
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 an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date as well as your images of the vehicle.
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.
I, the registered keeper of this vehicle, received a letter dated 23/07/2020 and 24/07/2020 acting as a notice to the registered keeper.
My appeal to the Operator - Initial Parking - for a parking charge notice issued for the 18/07/20 – was submitted and acknowledged by the Operator on 27/07/2020 and rejected via an email dated 28/07/2020.
My second appeal to the Operator - Initial Parking - for a parking charge notice issued for the 19/07/20 – was submitted and acknowledged by the Operator on 29/07/2020 and rejected via an email dated 30/07/2020.
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. Grace Period: BPA Code of Practice – non-compliance
3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
4. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
5. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
6. The ANPR System is Neither Reliable nor Accurate
7.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
8. No Planning Permission from Cornwall Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage
9. 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.
1) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
Initial Parking’s Appeal Letter states: “Fistral Beach, Newquay is private land and is subject to a parking management scheme put in place by the operator at the landowner’s request.”
As this operator – Initial Parking – does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner to support the statement above. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what Initial Parking is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator – Initial Parking – 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) 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 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:
<link here as per comments above>
“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.”
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''.
On the 18th the driver of the car at the time was captured by ANPR cameras driving in to the car park at 12:57.30 and driving out at 18:20 on the same date.
On the 19th the driver of the car at the time was captured by ANPR cameras driving in to the car park at 10:32 and driving out at 16:52 on the same date.
(a) On arrival - the 'observation period':
Upon entering the carpark on both days, the driver had to queue, wait to find a free spot and then park due to congestion from other vehicles. As it was a weekend and due to the Covid 19 situation meaning children were not at school there were a vast number of people attempting to enter the car park to find a space. To add to this the car park road is also the main footpath to the beach, meaning every family that wished to either walk to or leave the beach were walking up the main road in and around the congested cars. This caused an additional considerable delay in moving for any car as there were numerous children with body boards weaving obliviously in-between cars. Parking is also made worse by camper vans and other vehicles parked alongside the opposite wall not in allocated spaces, this therefore makes the main road in and out in to one lane, causing further chaos. An available spot was eventually found at the bottom end of the carpark, farthest away from the entry and exit. At this present time on a weekend it would take any car a great length of time to merely navigate to the end of the car park due to all the obstacles mentioned above, let alone then complete paying for parking.
Below is a satellite image of the site, clearly showing the narrow entrance and exit point, and long length of carpark:
<googlemaps image here marked up showing entrance/exit and length of carpark>
Figure 1: Fistral Beach carpark layout
Time was then required to:
a) find the parking signs and read them
b) decide to park
c) download the parking app, with poor signal (as the driver did not have sufficient cash and the parking machines do not accept cards)
d) pay for a ticket via the parking app
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 8 minutes on the 19th taken before being able to park and read the signs at this particular site is a reasonable period.
(b) On leaving - the 'grace period'
BPA's Code of Practice (13.2) states: ''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.'' In this case therefore, the 3 minutes on the 18th taken before being able to leave is a reasonable period.
BPA (13.4) reiterates this fact: ''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.''
Car Problems
Car issues were also had when leaving on the 18th and arriving on the 19th when trying to reposition the car in a space. The vehicle on both days refused to start after initially being switched off momentarily, when an attempt re-start the car was made the car merely ticked over and would not start. The car was then left for several minutes after which the ignition was tried again, the car then started after some effort by the driver. This was believed to be due to an electrical fault; this also added considerably to the time and therefore delayed the payment. We were staying at Fistral Beach Hotel, a well renown Spa Hotel not far from the car park for the duration of the say and leaving on the 20th. On the morning of the 20th the vehicle would not start at all and this resulted in a member of staff from the Hotel attempting to be jump start the car with their vehicle. After this failed the vehicle then had to be push started by the member of staff and a guest at the hotel, from the hotel car park on to the main road. If needs be the hotel can be contacted for this story to be confirmed, CCTV recordings can be requested from the hotel as this happened in the forecourt of the hotel right outside the main entrance, a witness statement can be sought from the member of staff and witness statement requested from several other staff members and guest of the hotel. Below is a redacted copy of our booking for the hotel.
Enter image
Given the timings shown on the PCNs (and subtracting the reasonable time explained above, on arrival Initial Parking is alleging that the driver exceeded the parking time on the 18th after the end of the parking event by 13 minutes. On the date of the 19th Initial Parking is alleging that the driver exceeded the parking time by 18 minutes. Both these are explained by the long distance from the bottom of the carpark to the exit, the narrow single entry/exit causing slow queues for the exit due to exceptional crowds of people and other vehicles. The time was also added to by suffering car electrical issues which can be verified by a well renown four-star Hotel and its staff. All these issues meant that the driver was prevented from immediately entering and paying and then from exiting the car park immediately, thus there was no parking contravention at all.
See Figure 1 above, to illustrate my point.
Initial Parking has displayed on their PCN only the ANPR entry and exit times from the car park. These are not the 'period of parking' although the law requires this to be stated.
In an important case (3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) Fistral Beach), the judge ruled that the 31 minutes the defendant spent driving round the crowded car park in Whit week did not classify as 'parking'. The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked. The signage only required payment for times parked, and therefore the judge ruled there was no contravention of the terms and conditions.
As such, on the 18th 13 minutes is a reasonable grace period to exit the car park after the parking contract has ended due to the reasons outlines above. Also, on the 19th 18 minutes is a reasonable grace period to arrive in the car park before the parking contract has started due to the reasons outlines above.
The parking operator has issued the parking charge notice incorrectly
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.
In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper 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 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 Initial Parking 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.''
4) 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 as opposed to attempting to read the terms and conditions before deciding against parking/entering into a contract and/or queuing to exit the carpark.
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 for the 18th separately states “Entry Details: 18/07/2020 at 12:57:30” and “Exit Details: 18/07/2020 at 18:20:59”. At no stage do Initial Parking explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.
The NtK for the 19th separately states “Entry Details: 19/07/2020 at 10:32:12” and “Exit Details: 19/07/2020 at 16:52:21”. At no stage do Initial Parking explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.
Initial Parking’s Appeal Reply IPL221009 for the 19th states “We can see that you paid for 6 hours parking time but stayed an additional 20 minutes and 9 seconds wihtout payment. Therefore, the charge remains valid and payment is due.”
” It is not in the gift of Initial Parking to substitute “entry/exit” or “onsite” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.
Initial Parking’s Appeal Reply also 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 28/05/2019, the vehicle was parked without this 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.
This was upheld in the decision for case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage.
I require Initial Parking to provide evidence to show the vehicle in question was parked on the date/time and at the location stated in the NtK.
5) 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 PCNs in question contain 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 legible date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).
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 and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.
<picture here of the PCN with ANPR images on it>
Figure 2: Images from PCN - NtK
6)_ The ANPR System is Neither Reliable nor Accurate
Under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order.
I require Initial Parking to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. As the parking charges are founded entirely on 4 photos of the vehicle supposedly entering and leaving Fistral Beach Car Park, it is vital that Initial Parking produces evidence in response to these points.
In addition to showing their maintenance records, I require Initial Parking to show evidence to rebut the following assertion. I suggest that in the case of my vehicle activating the system, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. Initial Parking appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time.
Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
As its whole charge rests upon two timed photos, I put Initial Parking to strict proof to the contrary.
7) 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:
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 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.
8) No Planning Permission from Cornwall Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage
Initial Parking do not have Planning Permission for pole-mounted ANPR cameras; upon searching the Cornwall Council’s planning database there are no applications recorded.
Therefore Initial Parking are/have been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.
I request Initial Parking provide evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (28/05/2019).
9) 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 visible 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:
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:
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:
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
''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:
''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:
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.
Are you quoting from the latest CoP dated Jan 2020 - as the parking event was July 2020?
6. The ANPR System is Neither Reliable nor Accurate
7.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
8. No Planning Permission from Cornwall Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage
https://forums.moneysavingexpert.com/discussion/6126237/popla-update#latest
How certain are you on these? 'Period Parked' has never swayed POPLA in my experience. Is there anything more substantial to hang your hat on in terms of PoFA no keeper liability?
Signage seems to feature very low down in your batting line-up, yet after 'No Keeper Liability' (with firm evidence of PoFA failure) 'Signage' is one of the main elements POPLA find in favour of the motorist. But you do need the evidence and able to articulate the reasons why signage 'fails'. Do you have your own range of decent photos of the signage. You need date-stamped photos.
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
The PPC has to address every point. If a motorist has challenged something in their appeal but the PPC has not addressed it, then the assessor must (should) allow it.
If they are not going to allow a point then they should say so, giving their reasons why.
If the assessor does not address it then they have made a procedural error by not considering all the appellants points.
If it gets to court, telling a judge that for example the scammers committed a criminal offence by not having advertising consent in place will have more weight if it was already brought to the PoPLA assessor's attention but not considered by them. All the points not considered go towards showing that PoPLA is not fit for purpose.
Other opinions of course are available.