Parking ticket - POPLA help

Umkomaas

It's the Browncross Street car park in Manchester.

There are no end of threads about this car park. Simply place 'Browncross Street' into this sub-forum's search engine - not the general MSE search engine.  Do have a read of some of the more recent ones which will hopefully give you some ideas on what to work on. 

Ginplease

Oh my goodness, talk about cutting it short! I really do hope I can get this in in time and today is classed as my 33rd day? Here is my final draft. Please feel to advise if I need to add or remove any points. Do I need to include my rejection letter in this letter?

POPLA

POPLA Verification Code: 

Vehicle Registration: 

 

I, the registered keeper of this vehicle, received a letter dated 13/05/2021 acting as a notice to the registered keeper. My appeal to the Operator – Euro Car Parks – was submitted and acknowledged by the Operator on 18/06/2021 and rejected via email dated 01/07/2021. 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.       Grace Period: BPA Code of Practice – non-compliance

2.       Frustration of contract (payment machine failure)

3.       The entrance signs are inadequately positioned and lit and signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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 Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

6.       No Evidence of Period Parked - NtK does not meet PoFA 2012 requirements

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

8.       The ANPR System is Neither Reliable nor Accurate

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

10.   No Planning Permission from Salford Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

 

1. 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 (of a minimum of 10 minutes) and one at the start.

 

BPA’s Code of Practice (13.1) states that:

 

“Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

 

BPA’s Code of Practice (13.2) states that:

 

“You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.”

 

BPA’s Code of Practice (13.2.a) states that:

 

“Vehicles are not permitted to park under the grace period in spaces designated to specific users for example Blue Badge holders. At all times vehicles must have appropriate and valid permit e.g Blue Badge on display for enforcement officer to inspect.”

 

BPA’s Code of Practice (13.4) states that:

 

“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.”

 

BPA’s Code of Practice (18.5) states that:

 

“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. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

 

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

 

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

 

“The BPA’s 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.”

 

“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.”

 

In November 2017, there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

 

Finally, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':

 

“Implications of the 10-minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11-minute grace period.”

 

The recommendation reads:

 

“Reword Clause 13.4 to ‘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 11 minutes.”

 

(Source: http://www.britishparking.co.uk/write/Documents/Meeting%20Notes/Governan ce/20150730_PDandS_Board_Action_Notes.pdf)

 

This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken 3 into account – certainly an allegation of under 11 minutes (as is the case here) is perfectly reasonable.

 

As stated earlier in this section, whilst 13.4 does not apply in this case (as a contract was never entered in to), it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.

 

If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions (in this case in the dark with no lighting), decide not to enter into a contract and then leave the car park.

 

It is therefore argued that the duration of visit in question (which Euro Car Parks claim was 22 minutes 16 seconds in total, including arrival and leaving time) is not an unreasonable grace period, given:

 

a)       I am injured and the other driver is elderly and disabled therefore we require more time

b)      The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.

c)       There are three or four different car parks all in close proximity together. One to the left of the entrance, one to the back, Euro Car Parks to the right and right behind the Euro Car Parks payment machine is another payment machine for another car park.

d)      The payment machine was aborting our payments.

e)      The lengthiness of Euro Car Park’s signage (in terms of word count) all written in tiny red text across of the sign (see Figure(s) 4).

f)        The car park entrance is only accessible via a one-way street and is situated in one of the busiest areas of Manchester. This car park is extremely busy on weekends and was especially busy on this particular Saturday afternoon following the lifting of lockdown restrictions.

g)       Due to the one-way system, upon entering the car park, we met head on with another vehicle that was attempting to exit the area, forcing us to reverse and manoeuvre around the oncoming vehicle and the avoid the vehicles either side in order to give way. Please see Figure 1.

h)      No guidance or instructions on how to extend a ticket which we were willing to do despite only entering the ‘grace period’ due to our disabilities.

 

All factors discussed above serve merely to increase the time taken to:

 

·         Locate a sign indicating entrance

·         Locate a sign containing the terms and conditions

·         Read the full terms and conditions in the darkness

·         Decipher the confusing information being presented

·         Decide not to park and therefore not entering into a contract

·         Return to car and safely leave the car park

 

 

Figure 1: One way street (Browncross Street) and a left turning into Johnson Street which leads to the car park itself. Johnson Street is narrow and is only wide enough for one car. This image was taken from Google showing the car park area in day light and what seems to be like a ‘quiet day’.

 

Below are images I took on my phone when we returned to the car park on a Sunday evening. As you can see, the entry points are always busy and obstructed.

 

 

I, and my disabled father, are appealing under The Equality Act 2010 because we feel we are being discriminated against. The Equality Acy 2010 clearly states that “parking companies cannot discriminate against you because of your mobility problems.”

 

I have sustained an injury which has caused significant damage to the ligaments, tendons, and nerve endings in my left foot. This makes it difficult for me to walk and I often have to stop due to the nerve pain and numbness in my foot. Medical advice following hospitalisation and physiotherapy instructs me to take my time and to not apply extensive pressure to my foot. I informed Euro Car Parks of my injury in my appeal.

 

The other occupant and driver of the vehicle is an elderly disabled man who holds a blue badge which is registered to this vehicle and was fully visible on the day in question. Again, this 92-year-old man needs a fair amount of time to enter/exit the vehicle and to find his footing. The blue badge was put in place whilst I helped my father into the car, changed my dressings and footwear (due to my foot bleeding and in order to be comfortable enough to drive) and to plan our route home. Please see Figure 2.

 

The BPA CoP also points out:

 

16.5) If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge, you must not issue it with parking charge notices

 

Although I believe this car park does not allow concession for blue badge holders, the BPA code of practice requires that the operator does not issue parking charge notices against that vehicle if they overstay their time.

 

Had there been a warden on site, he or she would have seen that my father is a Blue Badge holder and would not have issued a ticket. Therefore, it is unfair that we are being discriminated against based on the unreliable evidence of the ANPR camera, which does not differentiate between individual cases. Furthermore, it adds insult to injury that we have notified Euro Car Parks of this, but they have still rejected our appeal and failed to make a reasonable adjustment for the disabled driver and to allow more time, as the Equality Act 2010 requires.

 

This is a clear breach of the Equality Act 2010 and is illegal.

 

Figure 2: Blue Badge in windscreen.

 

Whilst I attended to my foot, my partner attempted to call the helpline twice to inform them that we needed more time. She also searched Google for an alternative number. The automated helpline went through 6 options, none of which were to extend or pay for another ticket. Option 6 gives you the option to speak to an advisor but when you select option 6 the following automated message is given:

 

“Due to current global events euro car parks are not able to assist you via telephone and request that you email us on info@eurocarparks.com Many thanks.”

 

Emailing in this particular situation was not an option. We were more than willing to ‘extend’ our ticket, but this was made difficult by Euro Car Parks, so we had no choice but to leave rather than accrue more time in the car park.

Ginplease

2. Frustration of contract (payment machine failure)

 

No contract could have been formed as consideration was not accepted by the parking company. The Pay & Display machine was faulty, meaning payment could not be made on over 10 attempts.

 

I attempted to pay by debit card, credit card, contactless and cash. After entering the registration number, the machine would ask for payment, stall and abort the transaction. My partner attempted to pay with her debit card, contactless and cash. Again, the machine would not accept payment. We tried multiple times with extreme frustration.

 

A nearby couple mentioned that they had experienced the same issue before us.

 

When we called the telephone number provided (020 7563 3000) it only gave us the following options:

 

·         Press 1 to pay a parking charge notice

·         Press 2 for PCN appeal information

·         Press 3 for season tickets

·         Press 4 for new business enquiries

·         Press 5 if you know the extension of the person you're calling

·         Press 6 to talk to an operator

·         Press star to hear these options again  

 

As mentioned above, when my partner selected option 6, the following automated message was given:

 

“Due to current global events euro car parks are not able to assist you via telephone and request that you email us on info@eurocarparks.com Many thanks.”

 

After failing to pay by phone, we persisted with the machine, and finally, it accepted payment on a Halifax debit card only. We have since noticed that the number plate appears wrong on the ticket. We most definitely did not enter the number twice and I can only put it down to a lag in the system.

 

Furthermore, due to the payment machine not responding and behaving strangely which in turn caused what Euro Car Parks call a “major keying error”, our appeal has been rejected and we were ordered to pay an ‘administration fee’. There is no keying error because the right VRM was put in, but the system recorded it twice. No letters or numbers are out of order and the VRM is fully shown, but twice. Therefore, this PCN was not properly issued and if anything at all, it was a minor keypad error caused by Euro Car Parks unpredictable and sporadic system and should have been cancelled outright.

 

The payment was only taken on this transaction despite trying minutes earlier with other debit/credit cards. Additionally, even though Euro Car Parks states that they accept Visa and Mastercard it cannot be the case as we tried every card. We found it infuriating that payment was only accepted on a Halifax debit card and not other well known bank cards. If this is usually the case, the cards that are ‘not accepted’ should be stipulated on the payment machine.

  

The payment machine only accepted cards. The operator did not accept cash payment and the contactless feature did not work. Insisting that payment should be made this way in the event of a fault with a machine amounts to indirect age discrimination contrary to the Equality Act 2010 and moreover is impossible in numerous circumstances such as where the driver does not have a mobile phone available, there is no signal or no battery.

 

It is especially confusing as the sign (see Figure 3) next to the sign (which mentions paying by phone) tells you that it’s a pay and display car park. Furthermore, the payment machine itself instructs you to: Number 4. Display ticket clearly in vehicle and number 5. Retain ticket as proof of purchase. All the confusing and misleading information is distressing, especially when the time taken is making you late for a medical appointment.

 

Figure 3: The second of the two signs in the car park. This sign specifies that this is a pay and display car park.

There is a severe lack of information to help customers in these events, despite calling the helpline number provided. This inconvenience caused a lot of stress and resulted in me being late for my medical appointment, which was the sole reason we were visiting Manchester.

 

As the parking company holds that in the event of a machine fault frustrating the driver’s attempts to pay it is ‘the driver’s responsibility to check for other payment methods provided on site, or find alternative parking to avoid a notice being issued’, then such a fault should be anticipated by the parking company and these terms clearly communicated to the driver at the time of parking in some manner, such as signage with the terms or an alternative phone number to call in the event of a fault such as this.

 

However, Euro Car Parks had no signs on site informing the driver what to do in the event of a fault with the machines, such as for example, “in the event that the payment machines are unavailable, the parking charges still apply and a “pay at home within 24 hours” service should be used.” Nor was there a sign instructing the driver to park elsewhere in the event of a faulty machine. In addition, there was no alternative phone number to ring, nor a person on site to speak to in event of a fault.

 

As the parking company issued these responsibilities/terms at the time of the appeal without doing so at the time of parking on site it appears to be a deliberate withholding of communication, there is no other explanation. As these terms were not communicated at the time, and as a Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms, there was no consideration/acceptance and no contract agreed between the parties.

 

As such, I put Euro Car Parks to strict proof that such signs are prominently displayed on site in a way that the party ‘must’ have known of it and agreed terms that it was ‘the driver’s responsibility to check for other payment methods provided on site or find alternative parking to avoid a notice being issued’.

 

Even if a contract was formed, which is impossible under trite contract law, the contract was frustrated because the claimant’s machine was broken. The alleged contract, created by the operator’s signage, is voidable under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it became impossible for the driver to make a card payment into the machine through no fault of their own, and over which they had no control. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms. As far as I’m concerned, we tried everything in our power to make payment and to extend the duration of our stay.

Ginplease

3. The entrance signs are inadequately positioned and lit and signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

 

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 'ParkingEye 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:

 

http://imgur.com/a/AkMCN

 

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. Figure 3 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:

 

Figure 4: Beavis sign

 

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 and sparsely 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.

 

Euro Car Parks’ main car park sign on the Browncross Street site (the only one in the car park displaying terms and conditions) is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure(s) 5).

 

Figure(s) 5: Browncross Street only sign displaying terms and conditions. Some of these images were taken with my arms stretched above my head and were taken from different angles.

 

Figure 6: This is the view from the entrance of the car park. As you can see, the sign is barely visible, hence why I outlined it in red for the purpose of this appeal.

 

As shown in Figure 1 above, as you approach the car park from the approach road, (Browncross street). Note the side road (Johnson Street), where the entrance to the car park is situated for a vehicle to enter is situated further down Browncross street. It shows the general view of the car park to illustrate sporadically placed signs with general areas of the site being unsigned.

 

The camera was held above head height so as to capture as close an image as possible, therefore it cannot be assumed that this is the view a person would have when standing below the sign. It should be emphasised that, when viewed from ground level, the text is even more difficult to read than it is in Figure(s) 5). Figure 1 shows a wider-angle view of the same main car park sign, giving some context to the size/location of the sign shown in Figure 6. Figure(s) 5 shows clear evidence that:

 

·         The sign is positioned high on a pole, making it difficult to read.

·         The terms are made even harder to read due to the positioning of car park

·         payment machine making it very difficult to get close to the sign and is brightly lit with blue LEDs, taking attention away from the unlit sign.

·         The sign should be lit from above, but as you can see from the images, the light is not on. It is only the payment machine that is lit. Please see Figure(s) 5. It is only the streetlight that is on which merely reflects on the glossy surface of the sign, again making it difficult to read.

 

The BPA Code of Practice (Appendix sets the requirements for entrance signs. Following further research (on foot, during daylight), it is not disputed that Euro Car Parks entrance sign meets these requirements in terms of wording but what is disputed are other requirements the BPA sets in Appendix B, specifically:

 

1.       The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.

2.       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 similar to that used on public roads and described in the Traffic Signs Manual.

 

In disputing points 1 and 2 above, the relevant entrance sign in this appeal case

is not readable by drivers without their need to look away from the road ahead, nor is it readable and understandable at all times due to height, angle and text size. This is especially the case for a person who is disabled or is in a wheelchair. Furthermore, the sign contains a substantial amount of text. This text is very small – impossible to read whilst in a moving vehicle – and difficult to read in daylight whilst on foot (let alone from a moving vehicle after dark). The sign contains a statement about liability in the event of theft from/damage to the vehicle whilst parked in the car park. It is arguably irrelevant to this appeal as it does not contain anything that suggests payment needs to be made or terms and conditions apply.

 

As such, I put Euro Car Parks to strict proof that such signs are prominently displayed on site in a way that the party ‘must’ have known of it and agreed terms that it was ‘the driver’s responsibility to check for other payment methods provided on site or find alternative parking to avoid a notice being issued’.

 

Even if a contract was formed, which is impossible under trite contract law, the contract was frustrated because the claimant’s machine was broken. The alleged contract, created by the operator’s signage, is voidable under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it became impossible for the driver to make a card payment into the machine through no fault of their own, and over which they had no control. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

 

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 operator’s 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 Euro Car Parks 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:

 

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

 

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

 

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

 

''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:

 

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-ViewingDistance-/10000000175068392/g.html

Ginplease

'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:

 

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 similar 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), in the same lighting conditions. 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.

 

In addition, the BPA Code of Practice (18.1) clearly states that:

 

“A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.”

 

Bearing this paragraph in mind, there was categorically no contract established between the driver and Euro Car Parks. 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.

 

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 entering the car park from a 30MPH road), 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.

 

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.

 

It cannot be reasonably assumed (particularly given this case took place after sunset in a car park without its own lighting or without any signage being adequately lit) that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one. Again, as you can see on Figure 6.

 

Figure 6 also shows the approach into the car and the lack of signage and parking charges which are hidden in small print (and does not feature at all on all but one of the signs within the car park site). Large 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. The only large sign that is visible is for another car park.

Ginplease

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

 

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:  

 

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

 

It therefore follows that I require Euro Car Parks 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.” 

 

Euro Car Parks 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. 

 

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.

Ginplease

5. 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 then 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).

 

Paragraph 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.

Ginplease

6. 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.

 

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;”

 

Euro Car Parks’ NtK simply claims “the vehicle was parked at Browncross street – Manchester, Browncross street Salford, Manchester, M60 9HP.”

 

The NtK separately states that the vehicle “entered Browncross street – Manchester at 15:55:43 and departed at 20:17:59”. At no stage do Euro Car Parks explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

 

Additionally, the pay and display ticket does not state a time, a date or an expiry time. Please see Figure 7.

 

Figure 7: Pay and display ticket provided by Euro Car Parks

 

Euro Car Parks NtK states “we are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay”. It is not in the gift of Euro Car Parks 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, Euro Car Parks are not able to definitively state the period of parking.

 

I require Euro Car Parks 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.

 

7. 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 PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a 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 letter underneath (but not part of) the images. The images have also been cropped to only display the number plate, and more importantly, only part of the number plate on entrance. As these are not the original images, I require Euro Car Parks 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. As you can see from the photo of the NTK, the entrance image also covers up part of the number plate.

 

Photo: This is an image of the NtK with non-compliant photographic evidence

 

Ginplease

8. The ANPR System is Neither Reliable nor Accurate

 

The Euro Car Parks Notice to Keeper (NtK) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.

 

The Notice to Keeper states:

 

“On 08/05/2021 the vehicle: X2RNG entered Browncross Street - Manchester, at 15:55:43 and departed at 20:17:59 on 08/05/2021.”

 

These times do not equate to any single evidenced period of parking. By Euro Car Parks own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking, and this cannot reasonably be assumed.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;

 

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

 

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.

 

As previously mentioned, the ANPR cameras do not capture the true picture of the individual’s situation. The ANPR cameras did not capture the blue badge that is registered to the car, our disabilities, us arriving on time or us making extensive attempts to extend our ticket.

 

I require ECP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

 

As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times (22 minutes and 16 seconds apart), it is vital that ECP produces the evidence requested in the previous paragraph.

 

9. 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.

 

Euro Car Parks’ 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.

 

The Euro Car Parks’ main sign in the Browncross Street car park (see Figure(s) 5) states:

 

“We are using cameras to capture images of vehicle number plates and calculate the length of stay between entry and exit 24 hours a day Monday to Sunday including bank holidays.”

 

Specifically missing from this sentence is the vital information 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. The only reference to Parking Charge Notices on Euro Car Parks’ sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states (see Figure(s) 5):

 

“This car park is patrolled, failure to comply with the following will result in the issue of a £100 Parking Charge Notice (£60 if paid within 14 days of issue).”

 

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

 

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: 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.

 

and Paragraph 69:

Contract terms that may have different meanings:

 

(1)    If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

 

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 because the operator 'fails to identify its commercial intent':

 

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

 

Misleading omissions: 6. - (1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2) –

 

(a) the commercial practice omits material information, 27

 

(b) the commercial practice hides material information,

 

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

 

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

 

It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.

 

 

10. No Planning Permission from Salford Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

 

No Planning Permission from Salford City Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

 

As of the end of January 2019, there is only one record of Planning Permission or Advertising Consent having been applied for in the Salford City Council online planning database for car parking signage on the site of Browncross street. There were no records concerning pole mounted ANPR cameras.

 

The only car park signage applications listed for this site which showed up on the search:

 

http://publicaccess.salford.gov.uk/publicaccess/applicationDetails.do?keyVal=9736492ADV&activeTab=summary

 

Ref: 97/36492/ADV, Display of non-illuminated car park sign, West Riverside Carpark, Junction Of Browncross Street/ Quay Street Salford 3. Application received Mon 14 April 1997

 

As there is more than one private car parking company operating on Browncross street along with council parking it is unclear which entity this planning application concerns. The solitary application also talks in the singular rather than for multiple signs, and identifies only one location, which is a distance from where the driver parked

 

UK government guidance on advertisement signage requires:

 

www.gov.uk/guidance/advertisements

 

“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.”

 

The lack of planning permission indicated by the search and the doubt thrown upon legality of the poles and signs implies that all Euro Car Parks Limited pole mounted signage, cameras and signage of 0.3m² and greater on the 06/12/18 may be illegal.

 

The BPA Code of Practice - Para 2.4 states:

 

“Paragraph 2.4 When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses. Examples of relevant law and guidance within this sector are:

 

•                     contract law

•                     tort of trespass

•                     data protection law

•                     consumer protection law

•                     Protection of Freedoms Act 2012 (PoFA), including Schedule 4 (included as Appendix C to the Code)

•                     DVLA Guidelines for Accredited Trade Associations

•                     equalities law.”

 

This proves that Euro Car Parks Limited are/have been seeking to enforce Terms and Conditions displayed on illegally erected signage, using equipment (pole-

mounted ANPR cameras) for which no planning application had been made.

 

I request Euro Car Parks 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 0.3m², prior to

the date to which this appeal relates (08/05/21).

Umkomaas

I'm not sure if you've finished yet, but you're over 9,500 words already. Are you seriously expecting a fine critique to sharpen all this up - hours of work - when you are sailing so close to the wind that any effort might be totally futile?

Just send it off as it is and hope you've got it in before the POPLA door is slammed shut.  Then hope for the best.