Need to find a winning POPLA appeal Initial Parking

flossykazzie

1.                There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location

BPA’s Code of Practice (18.2) states: 

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

BPA’s Code of Practice (18.3) states: 

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

BPA’s Code of Practice (Appendix states: 

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

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

 

2.         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 an unredacted copy of the contract with the landowner. 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 this operator 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).

Section 7 of the BPA Code of Practice 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.

f)    https://imgur.com/a/c5XMstZ


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

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.

The alleged contract has not been executed in accordance with paragraph 1 because it has not been signed by two people from each company nor by a director and witness of each company in accordance with the requirements of paragraph 2, and has not been signed by authorised signatories as defined in paragraph 3.

In addition, the signatures are illegible and therefore you require Initial Parking to prove they are actually employees of the two companies concerned as there is no indication on the document that they actually work for the two named companies or in what capacity.

As such the contract is not valid in accordance with the above Act of Parliament, and thus the PCN is also invalid.

 

             

flossykazzie

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’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:  l           be registered with the Information Commissioner   l            keep to the Data Protection Act   l    follow the DVLA requirements concerning the data   

l       follow the guidelines from the Information Commissioner’s Office on the use of  CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks

The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at: https://ico.org.uk/media/for- organisations/documents/1542/cctv-code-of-practice.pdf  The ICO’s CCTV Code of Practice makes the following assertions: 

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

              • Automatic Number Plate Recognition (ANPR);” 

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

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

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

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

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

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

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

“A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a

lawful basis and is justified, necessary and proportionate.”

The quotations above taken directly from the ICO’s CCTV Code of Practice state that if Smart Parking Ltd wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that Initial Parking must regularly evaluate whether it is necessary and proportionate to continue using it. 

It therefore follows that I require Initial Parking 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  has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Initial Parking has not stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork, NtK, reminder letter or rejection letter despite there being a Data

Protection heading on the back of the NtK. This is a mandatory requirement of the

ICO’s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the BPA’s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful. 

As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

             

 

flossykazzie

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

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.  

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: 

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”  

Initial Parking NtK simply claims that the vehicle “entered [xxx] at [xxx] and departed at [xxx]”. At no stage does Initial Parking explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

Initial Parking uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the vast unbounded and unmarked area to calculate their length of stay. Any vehicle passing by will be captured by ANPR. Initial Parking, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Initial Parking to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. 

By virtue of the nature of an ANPR system recording only entry and exit times, 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 the duration claimed) and at the location stated in the NtK.

             

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

The BPA Code of Practice point 20.5a stipulates that:  

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The NtK in question contains two close-up license plate images. The time and date stamp and license plate have been inserted into the underneath (but not part of) the images. In addition, the first image does not even show a vehicle, only an inserted image of the license plate and time stamp. Given the vast area that has neither been bounded nor marked as parking restricted, any vehicle passing by can be captured by Initial Parking  ANPR. As a result, these images cannot be used as the confirmation of the incident and Initial Parking claim was unauthorized.

I require Initial Parking to produce evidence of the original images containing the required date and time stamp and images showing the car is actually parked in the location stated rather than just passing by. Given the unbounded nature of the venue, failing to produce such evidence would indicate the Initial Parking has been using ANPR to engage random license plate collection of all vehicles passing by and send NtK with the aim to extract penalty. Such action is no different from sticking parking tickets to all vehicles passing by.

Recent investigation (27 Apr 2018) by BBC

(http://www.bbc.co.uk/news/business-43912327) shows that the private parking industry is unregulated and does not have any accountability. Various cases show the industry’s priority is maximizing the penalty received from the motorist without due regard to the integrity of the evidence. Private parking operators are financially incentivized not to use the original image as evidence, but putting partial evidence together to generate a case biased towards generating a penalty fee. Based on the fact above, I require Initial Parking to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

             

3.     The ANPR System is Neither Reliable nor Accurate

Initial Parking NtK simply claims “that the vehicle “entered [xxx] at [xxx] and departed at [xxx]”. Initial Parking states the images and time stamps are collected by its ANPR camera system installed on site.

In terms of the technology of the ANPR cameras themselves, POPLA please take note and bin your usual 'ANPR is generally OK' template because:

The British Parking Association DOES NOT AUDIT the ANPR systems in use by parking operators, and the BPA has NO WAY to ensure that the systems are in good working order or that the data collected is accurate. Independent research has NOT found that the technology is 'generally accurate' or proportionate, or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks.

 

As proof of this assertion here are two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits:

 

Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says:

"You were concerned about a comment from the POPLA assessor who determined your case which said:

"In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate" You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us. 

 

This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to.

 

POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:

 

''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.''

 

Our auditors check operators compliance with this Code clause and not the cameras themselves.''

 

Secondly, ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question.

The BPA even warned about ANPR flaws:

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

 

''As with all new technology, there are issues associated with its use'' and they specifically mention the flaw of assuming that 'drive in, drive out' events are parking events. They state that: ''Reputable operators tend not to uphold charge certificates issued in this manner''.

 

In this case, as the driver drove in and briefly stopped where there are no signs or bays at all (not in any retail area, but at a private residence not signed as being managed by Smart Parking) the ANPR system has indeed failed and the operator has breached the first data protection principle by processing flawed data from their system. 

Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO:

 

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

As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO when the public, or groups, make complaints.

 

Initial Parking is put to strict proof that the system has not failed visitors to the residential homes within this site. 

 

POPLA cannot use your usual 'the BPA audits it' erroneous template which needs consigning to the bin. 

 

Please show the above email from Steve Clark, to your Lead Adjudicator. 

 

Kindly stop assuming ANPR systems work, and expecting consumers to prove the impossible about the workings of a system over which they have no control but where independent and publicly available information about its inherent failings is very readily available.

 

             

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

The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.  

Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.  

Initial Parking 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.  

There is no information indicates that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices.  

             

 

flossykazzie

That is the end, looking forward to your comments.
Thank you all.

Coupon-mad

I have a rule that I can only read POPLA appeals when people remove the grating split infinitive ''I'' followed by a comma. 

Please get rid of the intro.  Someone wrote it in really bad English and hundreds of people keep copying it.

I detest that intro, where do people keep finding it please? I need to remove that horrible thing from the NEWBIES thread.

flossykazzie

Ok, I will replace it with "I am the Registered Keeper".
What is your opinion on the rest of it please.

Coupon-mad

I literally cannot bring myself to read it until that intro is gone...and please tell me where that intro is linked so I can remove it from the NEWBIES!

flossykazzie

I am sure that I found it under one of your headings, it was a 26 page POPLA appeal, under NEWBIES.

Coupon-mad

I think it is there but no idea which one.  I will remove it if someone points it out!

flossykazzie

I have just been looking to try and find it for you, but I am using my mobile phone and not the laptop, it seems to present different on a phone, if I find it I will tell you where it is, from what I remember, it was a 26 page very long appeal with photos taken in a dark street.