Is it even worth appealing some charges?

Reav

POPLA Verification Code: XXXXX

Vehicle Registration: XXXXX

Being the registered keeper of this vehicle, I received a letter from Minster Baywatch dated XXXXX acting as a notice to the registered keeper. My appeal to the Operator was submitted and acknowledged by Minster Baywatch Ltd. on XXXXX and rejected via an email dated XXXXX.

I contend that as the keeper, I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. No contract offered by Minster Baywatch - different company on the sign. 

1. No Evidence of Landowner Authority - the operator is put to strict proof of compliance with the BPA Code of Practice. 

1. The 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.

1. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

1. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

1. The signs fail to transparently warn drivers that ANPR cameras are in use or of what the ANPR data will be used for.
    

2. 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.

1. No contract offered by Minster Baywatch - different company on the sign. 

The signs at the site in question, Knettishall Heath, are misleading. I see nothing at all about Minster Baywatch Ltd (company no. 07517434) and therefore the driver cannot possibly have entered into a contract with them. The company 'managing' the car park is shown as a completely different legal entity, Bransby Wilson Ltd (company no. 04707572) and yet no PCN has been sent by them. The entrance siggn the driver would have seen before even entering the carpark is shown as being managed by Bransby Wilson Ltd (company no. 04707572). Even if the operator would argue that there were additional signs within the car park showing that Minister Baywatch Ltd (company no. 07517434) was the operator, by that point the driver had already entered into a contract with Bransby Wilson Ltd (company no. 04707572) due to the fact the site operates Automatic Number Plate Recognition cameras. It is clear to me that the driver wouldn’t be aware of who they were entering into a contract with due to the poor signage.

Even if the operator replies with evidence that the companies are in some way 'associated', the fact remains that these are different Ltd companies, different legal entities and one firm cannot offer a contract on a sign, only for a completely different company to post a PCN.

Indeed, there is even a question of data abuse, since at no point does a driver agree to a contract with (or even know about) Minster Baywatch Ltd (company no. 07517434), and yet they have obtained data from the DVLA about the registered keeper. They cannot obtain this on behalf of Bransby Wilson Ltd (company no. 04707572), and nor can Bransby Wilson Ltd (company no. 04707572) have gotten the data for Minster Baywatch Ltd (company no. 07517434) because only the latter of the two are BPA AOS members. This appears to be a case of data sharing abuse and a DVLA KADOE breach, as well as a breach of the BPA rules, whereby AOS members must not use their electronic DVLA link to obtain data for non-AOS members and they are forbidden from sharing or selling data to third parties (except debt collectors and solicitors).

However, given that POPLA do not consider data/KADOE issues, I will concentrate on the clear contract law issue that will win this case - namely that it is not conspicuous or clear which company operates the site. It is impossible to guess which company the motorist entered into a contract with (if not Bransby Wilson Ltd) or which signage and terms were viewed, when the most prominent main sign states: “This car park is managed by Bransby Wilson Parking Solutions”. 

Therefore, I must bring to your attention the following POPLA assessment and decision, dated 18th July, 2017. 

“Verification Code : 4111647007 Assessor Name : Esther Sargeant Decision: Successful” 

“Assessor supporting rational for decision 

Upon review of the evidence, I am not satisfied that the driver has been identified sufficiently. In order to transfer liability from the driver, to the registered keeper of the vehicle, the strict provisions laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. Upon review of the PCN, I am satisfied that the operator has complied with PoFA 2012. As such, the keeper is now liable for the charge. 

The terms and conditions of the site state: “All users must pay for their parking duration in full… By failing to comply with any of these conditions, you are contractually agreeing to pay the parking charge of £100”. The operator issued the PCN ...because the motorist did not pay the parking fee in full. The site operates Automatic Number Plate Recognition cameras. The cameras captured the appellant entering the site at 11:40, exiting at 13:23 on 20 May 2017; the period of stay was one hour and 42 minutes. 

The appellant states the notice does not state anything about a contract with Bransby Wilson Parking Solutions, though they are shown as the operator on signage. 

Section 18.3 of the British Parking Association Code of Practice states: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. 

Though I acknowledge that the operator has provided evidence of a contract with the landowner, the majority of the signage shows Bransby Wilson Parking Solutions as the managing agent of the car park. 

I consider that the evidence includes very few of the parking operator’s own signage. The wide-angle photograph of the car park does not appear to show any of the operator’s yellow signage. There is nothing necessarily wrong with one company managing the site and another enforcing upon it. However, to show that the operator is question has entered into the contract with the motorist, rather than Bransby Wilson Parking Solutions, the operator needs to evidence that its signage is sufficiently prominent and clear to the level that there could be no mistaking the circumstances, and that stated the difference between the companies. 

In this case, the entrance sign states: “managed by Minster Baywatch Ltd on behalf of Bransby Wilson Parking Solutions Ltd”. However, other signage states: “This car park is managed by Bransby Wilson Parking Solutions”. Though I acknowledge the operator’s yellow signage has its logos displayed and advises motorists: “By entering and remaining on this property, you have agreed to these conditions and contracted with Minster Baywatch to be legally bound by them”, this is in fine print on that cannot be determined from the wide-angle shot of the car park. The operator has not provided a site map. 

As such, I am unable to determine the spread and prevalence of its yellow signage throughout the site. Though I acknowledge in its case summary, the operator has confirmed who manages and who enforces the site, on all signage both parties have displayed that they manage the site.

 

Upon review of the evidence, I do not consider that it is conspicuous or clear which company operates the site. As such, I do not consider it is clear which company the motorist entered into a contract with or which signage and terms were viewed. Accordingly, I must allow the appeal. I acknowledge that the appellant raised additional grounds of appeal. However, as I have already allowed the appeal, it is not necessary for me to consider these.”

From the above case we can take it that POPLA ruled it is not clear which company the driver entered into a contract with. The difference between this appeal and the above is that the entrance sign has no mention whatsoever of Minster Baywatch Ltd (company no. 07517434) but instead Bransby Wilson Ltd (company no. 04707572).

 
It is therefore suggested that Figures 1, 2 and 3 serve to reinforce the point made regarding non- compliance with the BPA Code of Practice (19.3), specifically: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

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

I believe that there is no contract between the driver and the operator. I am using this platform to argue that the notice does not state anything about a contract with Bransby Wilson Parking Solutions, though they are shown as site managing agent of the car park. I therefore bring to your attention that it is neither obvious, nor clear which company operates this site. It is blatantly unclear which company the driver allegedly entered into a contract with, because of the confused signage and terms, as both entities have displayed that they manage the site.

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. 

Reav

3. The 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

British Parking Association CoP requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, my research has uncovered clear evidence that the signs in this particular car park were not sufficiently clear to give proper notice to the driver. I also contend that there was no agreement to the ‘parking charge’ at all because there are so few signs in the car park itself that the terms are not clearly visible from all parking spaces.

The sign at the entrance to the car park as seen in Figure 3 is positioned at a 45 degree angle to the road such that it is impossible for a driver to read without turning his/her head at a 45 degree angle to the road ahead.

The BPA CoP states under appendix B, Entrance Signs:

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

I have seen no site map and if one is produced in evidence I contend that it is not an up-to-date record of the current lack of signage around all bay areas.

I also require proof of where the car was parked during the time stated, to prove the operator's contention that this was one single parking event.

It is submitted that the driver did not have a fair opportunity to read about any £100 charge in large lettering anywhere near where the car was parked, wherever that may have been on site. Minster Baywatch Ltd have failed to evidence that the driver was bound to have seen notice of the contract and of the £100 charge itself. In fact the entrance sign fails to make any prominent mention of any £100 charge at all (see Figure 3).

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £100, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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:

xxxxxx

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

xxxxx

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

xxxxxx

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

xxxxxx

''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:

xxxxx

''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:

xxxxx

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

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Reav

4. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

5. The signs fail to transparently warn drivers that ANPR cameras are in use or of what the ANPR data will be used for

Paragraph 21.1 of the British Parking Association 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.

Minster Baywatch Ltd’s signs do not comply with these requirements because its car park signage failed to prominently notify the driver that ANPR technology is in use 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. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver’s arrival time would be calculated from a point in time on the road outside the car park. It is not at all clear that the cameras are not for security but are there in order to calculate ‘total stay time’.

In fact, any reasonable driver would believe that they are authorised to park when shopping and that any maximum time (if known) would be the time spent actually parked. This is the normal, accepted meaning of a ‘parking restriction’, which would never include the time outside on the road, time spent finding a space or when queuing to exit. 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 regarding the ‘time when the clock starts ticking’ and the commercial (not security) purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

xxxxxx

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,

(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.”

7. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no

information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

BPA’s Code of Practice (21.4) states that:

“It is also a condition of the Code that, if you receive and process vehicle or registered

keeper data, you must:

• be registered with the Information Commissioner

• keep to the Data Protection Act

• follow the DVLA requirements concerning the data

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

BPA’s Code of Practice (36.1a) states that:

“You may send an NTO to the registered keeper...”

“You must tell them about the complaints procedure they can use to tell the Information Commissioner and the DVLA if they believe their data has been used inappropriately.”

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 xxxxxx

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 organisation 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 minimise 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

Minster Baywatch 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 Minster Baywatch must regularly evaluate whether it is necessary and proportionate to continue

using it.

It therefore follows that I require Minster Baywatch 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.”

Minster Baywatch have not stated on their signage a Privacy Notice explaining the keepers right to a

Subject Access Request (SAR). This is in direct violation of the ICO’s CCTV Code of Practice –

specifically with the extracts quoted above.

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.

Coupon-mad

Make sure your evidence includes the BW sign, and say this was the only sign seen.

Copy another successful appeal from a Bransby Wilson POPLA thread.

Reav

Coupon-mad said:

Make sure your evidence includes the BW sign, and say this was the only sign seen.

Copy another successful appeal from a Bransby Wilson POPLA thread.

Here are the images I referenced (accidentally dropped them due to splitting the post up)



(Removed by Forum Team)

Coupon-mad

Yes I would state these were the only signs seen and the driver believed Bransby Wilson ran the car park. There was no 'meeting of minds' between the driver and the third party Minster Baywatch who the driver has never heard of.

Reav

Coupon-mad said:

Yes I would state these were the only signs seen and the driver believed Bransby Wilson ran the car park. There was no 'meeting of minds' between the driver and the third party Minster Baywatch who the driver has never heard of.

Thank you - you're a star. I'll chuck that in there and good to submit you reckon?

1505grandad

"...Bransby Wilson Ltd (company no. 04707572"  -  is that the correct name under that company no.?