POPLA appeal

kindofblue · 28 June 2021 at 11:24AM

Hi all
We got a PCN from SP for using their car park for an hour when going to the gym. The gym gives us 2 hours of free parking and I did get a ticket which I probably threw away after a week. Appealed to them (prior to discovering this forum) with proof from the gym that we were there for the duration that got turned down (having read through the forum this is no longer shocking). We don't remember giving out any details of who was driving.

Anyway we are now at POPLA stage and with the brilliant resources on here I've drafted the following appeal. I'd be grateful for comments and feedback. Many thanks

________________________

Appeal re POPLA Code: [XXX] v Smart Parking Ltd

Vehicle Registration: [XXX]

POPLA ref: [XXX]

I, the registered keeper of this vehicle, received a letter dated [XXX] acting as a notice to the registered keeper. My appeal to the operator – Smart Parking Ltd – was submitted and acknowledged on [XXX] but subsequently rejected by a letter dated [XXX]. 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) The entrance signs at regular entry are not clear about parking costs and signs in this car park are not prominent, clear or legible from all parking spaces.

2) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

3) 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

4) No Evidence of Period Parked – NtK does not meet PoFA2012 requirements

5) Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

6) The ANPR System is Neither Reliable nor Accurate

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

8) No Planning Permission from Tower Hamlet Borough Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

1. The entrance signs at regular entry are not clear about parking charges and signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, disabled motorists are unable to view the terms without leaving the vehicle.

BPA’s code of Practice (19.3) states:

Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

BPA’s Code of Practice (19.5) states:

“you should try to use plain and intelligible language in all your signs and information.”

BPA’s Code of Practice (19.9) states:

So that disabled motorists can decide whether they want to use the site, there must be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign must be close to any parking bays set aside for disabled motorists.

Figure 1 shows the view at the entrance/exit A, around the time and with conditions, similar to those of the case under discussion. It is straightforward to conclude from Figure 1 that parking charges are not clearly mentioned at the point of entry and they are not clearly legible.

In addition, Smart Parking Ltd’s terms and conditions are illegible in a number of ways, not least because of the sheer amount of text that must be read. It clearly violates BPA’s Code of Practice (19.9) which includes not only disabled people but motorists with small children or infants who cannot be left in the vehicle for the driver to discover terms and conditions.

Figure 1: terms and conditions

Figure 2: Signages and terms and conditions not legible from disbaled parking bays or Parent and child parking bays.

This case is more similar to the signage in POPLA decision 5960956830 on 02/06/16, 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.''

In September 2017 a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.

Again in April 2018 there was a not dissimilar POPLA Appeal versus ParkingEye which was successful on the grounds that the assessor (Ashlea Forshaw) believed there was a clear lack of lighting and that the signs could not be clearly seen during the hours of darkness. Ashlea Forshaw wrote the following:

“Having assessed the operator's evidence of the signage displayed at the site, I am not satisfied that this proves that the signs are displayed clearly in the dark.”

“The ANPR photos clearly demonstrate that the appellant has entered the site during the hours of darkness. Therefore, I would expect the operator to provide sufficient evidence proving that there is lighting at the site and that the signs can be clearly seen during the hours of darkness. On this occasion, the operator has failed to demonstrate this and so, I cannot conclude that a contract was formed. Therefore, this appeal is allowed and the other grounds for appeal do not need any further consideration.”

From the evidence shown above (Figure 4), the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put Smart Parking Ltd 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: [link to mozilla]

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

[link to signazon]

''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:

[link to signchef]

'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.''

When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high, on the passenger side of the vehicle, not visible from drivers side), invisible after dark (not lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.

Furthermore, in this case the driver was attending xxx gym during the time they were parked in yyy car park. The gym offers 2 hours of free parking to its patrons. SP have put no information about parking at the entrance to the gym as shown in figures 4, 5, and 6.

Figure 4: no signs in xxx gym

Figure 5: no signs in front of xxx gym

Figure 6: no signs in front of xxx gym

Bearing all the evidence above in mind, there was categorically no contract established between the driver and Smart Parking Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

kindofblue · 28 June 2021 at 11:25AM

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.

3. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement). 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:

[link to ICO] 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 Smart Parking Ltd must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require Smart 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.”

Smart Parking Ltd has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Smart Parking Ltd 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. A picture of their Terms and Conditions displayed on site is in Figure 3.

Figure 3: Terms and conditions

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.

kindofblue · 28 June 2021 at 11:30AM

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 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;”

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

Smart Parking Ltd 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. Smart Parking Ltd, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Smart Parking Ltd 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, Smart Parking Ltd are not able to definitively state the period of parking.

I require Smart Parking Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

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."

The NtK in question contains two images. The time and date stamp and license plate have been inserted on top of and underneath the images. It is well known that the timestamps can be inserted into any image using even the most amateur, freely available software e.g. Microsoft Photo Editor. As a result, these images cannot be used as the confirmation of the incident and Smart Parking Ltd claim was unauthorized. Furthermore, vehicles can enter and leave multiple times and it is well possible that Smart Parking have include the first time a vehicle entered the car park and the last time it left the car park.

I require Smart Parking Ltd 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.

Recent investigation (27 Apr 2018) by BBC

(link to bbc]) 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 Smart Parking Ltd to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

kindofblue · 28 June 2021 at 11:32AM

6. The ANPR System is Neither Reliable nor Accurate

Smart Parking Ltd’s NtK simply claims “that the vehicle “entered [xxx] at [xxx] and departed at [xxx]”. Smart Parking Ltd 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:

[link to britishg parking]

''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:

[link to british parking]

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.

Smart Parking Ltd 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.

7. 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.

Smart Parking 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.

8. No Planning Permission from aaa Borough Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

A search in aaa Borough’s planning database (link to planning portal) does not show any planning permission for the pole-mounted ANPR cameras for Smart Parking’s xxx car park, nor does it show any advertising consent for signage exceeding 0.3m2. UK government guidance on advertisement requires:

“If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under.

It is criminal offence to display an advertisement without consent.” This clearly proves Smart Parking Ltd is/has 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 Smart Parking Ltd provides 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 (xxxxxx).

kindofblue · 28 June 2021 at 11:35AM

(sorry for the multiple posts, it wouldn't let me post as one)

D_P_Dance · 28 June 2021 at 11:36AM

Have you complained to your MP?

Umkomaas · 28 June 2021 at 12:16PM

Ditch 6, 7 and 8. Waste of time, POPLA will not adjudicate on any of them.

Did you identify the driver in your initial appeal? If you didn't, why aren't you arguing 'no keeper liability', your very best defence against Smart Parking's non-PoFA compliant Notices to Keeper? Can you post up exactly what you said in your initial appeal please?

Figure 2: Signages and terms and conditions not legible from disbaled parking bays or Parent and child parking bays.

Why is this relevant? Were you using a disabled parking bay? Are you disabled?

Figure 4: no signs in xxx gym

Why is this relevant? Is the car park one that is exclusive to the gym, or is it a general car park that gym members use (as well as other shoppers in the area)? Is there some requirement for gym members to enter their details on a Smart Parking tablet in the gym to confirm their usage while parking there?

kindofblue · 28 June 2021 at 2:10PM

D_P_Dance said:

Have you complained to your MP?

Not yet but will do tonight.

Umkomaas said:

Ditch 6, 7 and 8. Waste of time, POPLA will not adjudicate on any of them.

Apart from 7 and 8 contributing to breaches of privacy, I thought it was better to have more points than fewer? I have no experience with any of this though. I'll remove if no one else thinks they add value.

Umkomaas said:

Did you identify the driver in your initial appeal? If you didn't, why aren't you arguing 'no keeper liability', your very best defence against Smart Parking's non-PoFA compliant Notices to Keeper? Can you post up exactly what you said in your initial appeal please?

No, the keeper appealed to SP. The driver was not identified however they attached evidence from the gym that their child was attending a swimming lesson at said time. Don't have the exact record any more unfortunately but it was along the lines of "please see attached note from the gym proving my child xxx was attending a yyy lesson at zzz gym".

Maybe I've misread the newbies post #3 but can we still appeal 'no keeper liability' to POPLA, for some reason I thought it was only for the initial appeal to the operator?

Umkomaas said:

Figure 2: Signages and terms and conditions not legible from disbaled parking bays or Parent and child parking bays.

Why is this relevant? Were you using a disabled parking bay? Are you disabled?

Not disabled but amounts to the same with a small child in the car? You can't get out and leave them alone in the car while you read the Ts&Cs?

Umkomaas said:

Figure 4: no signs in xxx gym
Why is this relevant? Is the car park one that is exclusive to the gym, or is it a general car park that gym members use (as well as other shoppers in the area)? Is there some requirement for gym members to enter their details on a Smart Parking tablet in the gym to confirm their usage while parking there?

Will remove, not exclusive. The idea came from another appeal that was discussed on here for the same gym/car park that was successful at POPLA.

Thanks for all the points, this is really useful!

Umkomaas · 28 June 2021 at 3:00PM

I'm out at the moment and only have my phone which is far from ideal for replying. Once I'm home I'll respond more fully.

Umkomaas · 28 June 2021 at 5:07PM

Apart from 7 and 8 contributing to breaches of privacy, I thought it was better to have more points than fewer? I have no experience with any of this though. I'll remove if no one else thinks they add value.

The size of the appeal can put some PPCs off responding to POPLA, giving the motorist a default win, but most of them now have templates to deal with regurgitated and irrelevant paragraphs. On the basis that 6, 7 or 8 have ever succeeded (I've never even seen a POPLA assessor comment on them), personally I'd want my appeal much more sharply focused and appear to have been written by someone with knowledge than someone just padding out the appeal with irrelevant stuff like planning permission etc. But it's your appeal, not mine.

Maybe I've misread the newbies post #3 but can we still appeal 'no keeper liability' to POPLA, for some reason I thought it was only for the initial appeal to the operator?

This is the sure-fire way of beating SP at POPLA, provided the driver hasn't been inadvertently or tangentially identified. Your very best opportunity. It's a pity you don't have a copy of your initial appeal for us to check. But you must make 'no keeper liability' your number 1 point in your appeal - placed right at the top of it. Infinitely more useful to you than planning permission.

Not disabled but amounts to the same with a small child in the car? You can't get out and leave them alone in the car while you read the Ts&Cs?

There is no requirement placed on PPCs to make signage viewable to parent and child bays, you do realise that such bays are just marketing gimmicks, there is no entitlement attached to them. In terms of disabled bays, whether or not the signage is visible from them, there is no 'get out of jail card' for anyone who is not entitled to use the bays, you can't just throw it in as a general 'gotcha, therefore cancel the PCN'!

kindofblue · 28 June 2021 at 6:45PM

Many thanks, here's my revised draft. Added no keeper liability as point 1, and removed 6,7 and 8.
-------------------

I, the registered keeper of this vehicle, received a letter dated [XXX] acting as a notice to the registered keeper. My appeal to the operator – Smart Parking Ltd – was submitted and acknowledged on [XXX] but subsequently rejected by a letter dated [XXX]. 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. The handling of the Parking Charge Notice is riddled with non-compliances

a. Smart Parking has not been able to identify the driver
b. The Parking Charge Notice does not constitute Notice To Keeper
c. The photographs provided contain discrepancies and cannot be used as evidence

2) The entrance signs at regular entry are not clear about parking costs and signs in this car park are not prominent, clear or legible from all parking spaces.

3) No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

4) 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

5) No Evidence of Period Parked – NtK does not meet PoFA2012 requirements

6) Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

1) The handling of the Parking Charge Notice is riddled with non-compliances.

2) Parking Charge Notice Non-Compliance With Section 4 p9(2)f of POFA
Smart Parking Ltd have failed to include or even allude paragraph 9(2)f Schedule 4 POFA as detailed below;

9(2)(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The operator cannot hold a registered keeper liable with non-POFA Notice to Keepers, which have nothing from the POFA paragraph 9 within the document whatsoever. This is the only version NTK that Smart Parking have ever used and they have never been able to hold a registered keeper liable under the law, so the PCN was not properly given and POPLA must allow the appeal.

Furthermore, the PCN arrived after 15 days from when the vehicle was allegedly parked. This is clear from the date of issue of the PCN xx/xx/xx and the date on the alleged ANPR images yy/yy/yy.

2. The entrance signs at regular entry are not clear about parking charges and signs in this car park are not prominent, clear or legible from all parking spaces.