PCN at Euro Car parts Crawley for parking on DYL

Umkomaas

Fruitcake said:

That sign looks to be of a forbidding nature to me. No offer to park, so no consideration, no contract can be formed for a motorist to park.

Are there any entrance signs to the site?

A disguised penalty. There is nothing on that notice that remotely suggests that it's a contract.  Private companies cannot impose penalties. 

@A_S read up on Google the component parts a contract requires for one to be lawful. You may well have to debate with a Judge if you can't knock the reality of this into a POPLA assessor's skull. 

Coupon-mad

I agree, there is nothing of value offered.  Parking is not offered.  That's what we mean by 'no consideration', therefore there is no contract agreed. The sum is attempting to create an arbitrary penalty for what was at the most, trespass.  It's certainly not a contract agreed between two parties where something of value is exchanged.

A_S

Hi guys 

I have emailed my MP and he sympathises with my case and he said it is not a matter in which he can intervene.  

I've been suggested to go through the process of appeals then PoPLA after rejection.  They have provided me with the Parking Code of Practice Act, which received Royal Assent in March 2019 but has not been published yet so I don't know how that helps me.  

I have done a property ownership search with the land registry and the registered owner is BBC PENSION TRUST LIMITED and I'll start writing to them.  

In the meantime, I’ll send the appeal to Premier Park Limited.

A_S

hi guys
I have drafted a POPLA appeal.  I could not upload the whole text so I'll try and attach a pdf file and any advice/suggestions would be much appreciated.
thanks 

Coupon-mad

Better to copy the text, split across two replies; it's easier for everyone to look at.

A_S

Dear POPLA Assessor 

POPLA Ref: xxx

PCN Ref: xxx 
I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of a vehicle, in respect of an alleged breach of parking conditions at Gatwick 80, Crawley, West Sussex, RH10 9PL on the 09th of November 2020.

 

I appeal to you that I am not liable for this parking charge on the basis of the points below:

 

 

1) Premier Park Ltd’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012.

 

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor (Premier Park Ltd) to have the right to recover any unpaid parking charges from the keeper of the vehicle (myself), certain conditions must be met as stated in schedule 4.  It is my belief that Premier Park Ltd have failed to fulfil the conditions of paragraph 9; which states that Premier Park Ltd must have provided myself as the registered keeper with a notice in accordance with paragraph 9. Most notably paragraph 9(2)(a) which requires the Notice to Keeper to:

 

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

 

The Parking Charge Notice which I have received did not specify the time period the vehicle allegedly parked there.  I have only been supplied with pictures of my vehicle with different time stamps which does not prove that the vehicle actually parked at the specified location in the PCN. 

Furthermore, the vehicle seen in the picture is located at Eurocarparts, Crawley, RH10 9AN but the ticket issued states that the vehicle allegedly parked at Gatwick 80, Crawley, West Sussex, RH10 9PL

 

 

The Parking Charge Notice sent to myself as Registered Keeper does not comply with the legislation set out in the Protection of Freedoms Act 2012 and as such cannot pursue me, as the registered keeper, for any unpaid parking charges.

 

This is a clear and strict requirement under the relevant legislation that Premier Park Ltd have not complied with and as such cannot rely upon to hold me liable as keeper.

 

 

 

2) Premier Park Ltd has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

 

I do not believe that Premier Park Ltd has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, Premier Park Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

 

I contend that Premier Park Ltd merely holds a basic licence to supply and maintain (non-compliant) signs and to post out 'tickets' as a deterrent to car park users. I therefore require Premier Park Ltd to provide POPLA and me with an un-redacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits Premier Park Ltd to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

 

For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.)

A witness statement would not comply with section 7 of the BPA Code of Practice as the definition of the services provided would not be stated in such a vague template document.

 

In addition, Section 7.3 of the CoP states:

 

“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.''

 

 

3) The signage in the car park was inadequate.

 

Since receiving this PCN I have visited the car park where the parking event allegedly occurred, and feel that the signage was not adequate. The British Parking Association CoP requires that terms and conditions on car parking signs must be clearly readable and when a parking area entered immediately by turning off a 30mph road, the typical approach speed is 15mph the size of the text should be at least 60mm for any relevant restrictions/fines which might apply.  The text relevant to charges and relevant information are all about 10mm in size which can’t be expected to be read by any driver at 15mph.  British Parking Association CoP states that “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.”

 

 

The signs around the car park detailing the terms and conditions of parking are approximately 2.5 metres off the ground, which is well above the average height for an adult and contain a large amount of writing in small lettering that is not easy to read.

 

Closest sign on the side of the road from where the alleged offence occurred is about 110 feet away.   

 

There is no entrance sign present which would warn drivers of restrictions present on the site.  All the signs are either up on a lamp post or on walls so any driver would have to take their eyes off the road to notice the signs let alone to try and make sense of their term and conditions as the text are illegible. 

 

For a contract to be valid and legally binding there should be the following;

1.  Offer

2.  Acceptance of the offer

3.  Consideration

4.  The capacity of the parties involved to enter into a contract

5.  All parties intend to enter the agreement

 

Premier Park Ltd’s signs present on site are forbidding in nature, it states “No Stopping/parking or waiting on double yellow lines/hatched areas at any time. No exceptions.” and it is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding, they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.  So, in this case I believe no contract was entered into by the driver to the operator and the Parking Charge Notice issued is a penalty in disguise and private companies are not allowed to issue a penalty. 

 

The above point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

While this is a County Court decision and therefore not binding, it is on all fours with the present case and may be considered as persuasive. A full transcript of the Approved Judgment for the above case will be provided in the event that this case proceeds to a hearing.

 

In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed

 

 

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. 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.

A_S

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.

Premier Park Ltd’s signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

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.

 

 

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 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."

 

Please see image of sign which Premier Park Ltd has provided, it is illegible and have consequently failed to meet BPA’s Code of Practice. 

 

https://imgur.com/CaKeOq9

 

 

 

Premier Park Ltd authorises certain vehicles to park on the double yellow lines along the road which quite often block the signs which are present on their site and as such the driver did not see any signs on that particular date of the alleged offence to know that there are parking restrictions (see images )

https://imgur.com/XMD5Agg

 

https://imgur.com/Kmw4KxW

 

https://imgur.com/fDQTVMi

 

https://imgur.com/VdZH1Mr

 

 

 

 

 

 

 

6) 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

 

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.”

 at this site is justified, fair and proportionate).

 

A serious BPA CoP breach

 

“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.”

16

 

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 Premier Park Ltd must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require Premier Park 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.”

 

 

Premier Park Ltd has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Premier Park Ltd has not stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork, NtK 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.

 

 

7) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

 

I was the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. No assumptions can be made by POPLA nor parking operators, that 'driver liability' is possible in this situation just because I appealed as registered keeper, as is my right. Henry Greenslade, the previous POPLA Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.

 

“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...has no legal obligation to name the driver.”

 

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, 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 registered keeper without a valid NTK.

 

Furthermore, the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

 

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed.

 

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.” Thus in this situation, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.

Le_Kirk

Don't put links in POPLA appeals, embed the content in your appeal.  Do not give the POPLA assessors any excuse to avoid doing their job, they will not go chasing links al over t'Internet.

Fruitcake

At a quick glance that looks good. Make sure you embed the images rather than use links. That way the assessor will be forced to look at them rather ignoring them if they can't be bothered, or have problems with the links not working. Save as a pdf and add as an attachment putting something like, See attached appeal in the text box as advised in the NEWBIES.

Note that PoPLA are putting everything on hold for the time being so you should get a reply to confirm receipt of the appeal, but then it will go quiet for some time.

Obviously leave your draft for the regulars to check over before you submit it, remembering that PoPLA codes last for 32 days.

Umkomaas

The Parking Charge Notice sent to myself as Registered Keeper does not comply with the legislation set out in the Protection of Freedoms Act 2012 and as such cannot pursue me, as the registered keeper, for any unpaid parking charges.

 

This is a clear and strict requirement under the relevant legislation that Premier Park Ltd have not complied with and as such cannot rely upon to hold me liable as keeper.

You will have to explain precisely to POPLA how the NtK fails to comply with PoFA. You can't just throw a general statement in and expect POPLA to do a forensic examination to see whether you have a point.