Parking ticket from Swanley Park

RR7316

Hi, I'm looking for some advice. I received a parking charge form Swanley park ( a council owned park but parking managed by Civil enforcement ltd). It is an ANPR parking system and you pay on a machine or via a parking app £3 for the day. I visited on a hot summer day when my car air conditioning wasn't working. I took my daughter and she needed feeding (I breastfeed). I was rushing to feed her and thought I had paid on the app but it didn't go through. I got the £60 parking fine and appealed. Unfortunately I didn't turn to this forum before I appealed and I admitted in the appeal to being a driver. I'm unsure if I have any leg to stand on for a POPLA appeal. They are now saying it will be a £100 fine if I appeal to POPLA. I'm on maternity leave and with the cost of everything I really can't afford the £100 as I'm not being paid. On the advice of this forum I have also complained to the local council but have not had a reply. I can follow this complaint up again but would be grateful of any advice on what to add to the complaint. The civil enforcement company have said they have checked that their parking system was working on the day and all payments worked before and after I arrived so it is unlikely to be an error with their system although other people have had problems with this in the past.

Mouse007

If Swanley Park is council owned then it is not private land. If I am reading Section 3 (1) b and 3 (2) of Schedule 4 of the Protection from Freedoms Act 2012 correctly that means it is not relevant land. If it is not relevant land then I don't think a private parking company should be managing it and doubt if they have any legal right to demand payment.

Others may correct me, or confirm.

I further thought APRN systems were banned from local authority car parks.

KeithP

@Mouse007 is right - on both counts.

Swanley Park often crops up here.

Have a look at this thread from September last year... read it in it's entirety...

County Court Claim From Civil Enforcement Ltd - £277 for 55 mins parking!! UPDATE - CLAIM RETRACTED!

Coupon-mad

But none of it matters.  Sadly the OP has thrown the baby out with the bathwater by already appealing as admitted driver.  The 100% win that was open to them when the PCN arrived, has been binned.

Are CEL using ANPR in this park? The NTK is issued based on camera in/out images?  Land under Council control can't be operated this way and I am about to do a BPA Complaint about CEL.

Send me a pm if you want support to include your case in the complaint.

Umkomaas

Send me a pm if you want support to include your case in the complaint.

@RR7316, please do that. @Coupon-mad is the premier poster on this forum, advises Govt on private parking issues and can be 100% trusted. 

RR7316

Thanks for all advice. 

I used a complaint e-mail sent by another forum user to a different council and adapted it to Swanley council about the illegal use of ANPR and have been told by a representative of the council that they will request the ticket to be cancelled. I am yet to receive confirmation in writing so I will wait to hear from CEL. 

My complaint e-mail:

Dear Sir/Madam,

 I am writing to complain about the use of ANPR cameras at your Car Park for Swanley Park.

 I have been issued with a parking charge fine, and threatened with being sued and court action if I do not pay,  from your private contractor Civil Enforcement Ltd due to an unpaid parking ticket of £3 on 16/06/2022.

 I have been appealing the PCN due believing I had paid on the app system but it had not gone through and due to the lack of prominent signage detailing the new parking system that was introduced in April 2020. I have not visited the park since before this new parking system was introduced and parked at the far end overflow area of the car park and did not notice signage detailing this change. I am not a local resident and I was not aware that the new ANPR enforcement for parking was introduced. Due to the signage not being prominent, I didn’t realise the car park was now charging to park.

 Since dealing with the PCN appeal, I have since learned that the LGO has previously found in favour of a member of the public that received a PCN at Lullingston County Park, managed by Kent County Council. In the LGO decision, which I have attached, it says: “The Council did not use the correct process to issue a parking penalty to Mr X. This is significant fault. This affects other members of the public too and we therefore find it appropriate to consider any wider injustice”. 

I’ll draw your attention to the case of High Wycombe council who were banned from accessing DVLA data due to illegal use of ANPR systems. This council were forced to revert to pay and display machines and remove ANPR systems to move inline with the correct legislation and to again access DVLA data legally. 

 The Deregulation Act (2015) also prevents the use of private firms to use ANPR by local authorities to issue PCNs by post and I would suggest that you seriously review the legal viability of using Civil Enforcement Ltd to issue such PCNs via ANPR.

In fact, the British Parking Association’s own notice to their members, via their attached guide entitled “ANPR In Local Authority Car Parks”, advised that “So far as off-street parking is concerned, the Secretary of State for Transport wrote to all English local authorities in September 2014 indicating that the Government opinion was that it was unlawful for local authorities to use CCTV/ANPR in public car parks and informed them that DVLA would not supply information in those circumstances. That remains the Government's position”. Robert Goodwill (roads minister) has previously written to council parking managers warning them ANPR car parks are not lawful and that whatever councils say about who runs their car parks, they cannot avoid legal responsibility.

 I would like to directly ask Swanley Council why they continue to illegally use Civil Enforcement Ltd’s ANPR system to enforce parking fines via post for their car parks at Swanley park. They also use this illegally obtained data and information to threaten court action and to sue members of the public. 

 I would also request that Swanley Council instruct Civil Enforcement Ltd to retract their parking charge and to remove any threat of further court actions. Should this matter proceed to court, I will strenuously defend my case on the grounds as explained in this email, and as mentioned legal responsibility for the use of this ANPR system stops with Swanley Council. 

Reply:

Good Morning DR ...,

 

I hope you are well?

 

Just to keep you updated, I have requested the fine be cancelled and am awaiting a response.

 

As soon as I have a reply I will update you.

Coupon-mad

 Need to press through with an ICO complaint anyway, I'd say.

I'll be doing a BPA complaint about CEL this week.

RR7316

Hi all, 

Just wanted to update you on my parking ticket.

I complained to Swanley council and they agreed to cancel the ticket with CEL. My complaint email is below. I also appealed to POPLA on a few different grounds including the use of ANPR in a council carpark and the response was interesting, my appeal was rejected. I have sent directly to Coupon Mad as I think they would be interested.

Dear Sir/Madam,

 I am writing to complain about the use of ANPR cameras at your Car Park for Swanley Park.

 I have been issued with a parking charge fine, and threatened with being sued and court action if I do not pay,  from your private contractor Civil Enforcement Ltd due to an unpaid parking ticket of £3 on 16/06/2022.

 I have been appealing the PCN due believing I had paid on the app system but it had not gone through and due to the lack of prominent signage detailing the new parking system that was introduced in April 2020. I have not visited the park since before this new parking system was introduced and parked at the far end overflow area of the car park and did not notice signage detailing this change. I am not a local resident and I was not aware that the new ANPR enforcement for parking was introduced. Due to the signage not being prominent, I didn’t realise the car park was now charging to park.

 Since dealing with the PCN appeal, I have since learned that the LGO has previously found in favour of a member of the public that received a PCN at Lullingston County Park, managed by Kent County Council. In the LGO decision, which I have attached, it says: “The Council did not use the correct process to issue a parking penalty to Mr X. This is significant fault. This affects other members of the public too and we therefore find it appropriate to consider any wider injustice”. 

I’ll draw your attention to the case of High Wycombe council who were banned from accessing DVLA data due to illegal use of ANPR systems. This council were forced to revert to pay and display machines and remove ANPR systems to move inline with the correct legislation and to again access DVLA data legally. 

 The Deregulation Act (2015) also prevents the use of private firms to use ANPR by local authorities to issue PCNs by post and I would suggest that you seriously review the legal viability of using Civil Enforcement Ltd to issue such PCNs via ANPR.

In fact, the British Parking Association’s own notice to their members, via their attached guide entitled “ANPR In Local Authority Car Parks”, advised that “So far as off-street parking is concerned, the Secretary of State for Transport wrote to all English local authorities in September 2014 indicating that the Government opinion was that it was unlawful for local authorities to use CCTV/ANPR in public car parks and informed them that DVLA would not supply information in those circumstances. That remains the Government's position”. Robert Goodwill (roads minister) has previously written to council parking managers warning them ANPR car parks are not lawful and that whatever councils say about who runs their car parks, they cannot avoid legal responsibility.

 I would like to directly ask Swanley Council why they continue to illegally use Civil Enforcement Ltd’s ANPR system to enforce parking fines via post for their car parks at Swanley park. They also use this illegally obtained data and information to threaten court action and to sue members of the public. 

 I would also request that Swanley Council instruct Civil Enforcement Ltd to retract their parking charge and to remove any threat of further court actions. Should this matter proceed to court, I will strenuously defend my case on the grounds as explained in this email, and as mentioned legal responsibility for the use of this ANPR system stops with Swanley Council. 

POPLA repsonse:

Unsuccessful

Assessor Name

Taylor-Jade Ryan

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) as payment was not made in accordance with the terms displayed on signage.

Assessor summary of your case

The appellant’s case is that they do not believe the change of parking terms has been made clear enough to alert patrons of the changes. They say the signs are not clear from the middle of the car park and the route the appellant took there were not visible. They also explain that no machines are visible, and the signs are in black and white which do not stand out. The appellant says the site should not be using ANPR as a Council ran car park as this is illegal. They feel the parking charge amount is extortionate. It is important to note that the appellant was provided the opportunity to comment on the operator’s case file, but we did not receive any comments from them. The appellant has provided several images of their vehicle in the car park and of the car park itself. They have also provided 2 videos of the car park. The evidence provided has been considered in making my determination.

Assessor supporting rational for decision

When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The operator has provided photographic evidence of the signage in place in the car park, which states: “PHONE AND PAY OR PAY AT MACHINE…ON HOUR £1…ALL DAY PARKING £3…PAYMENT MUST BE MADE BEFORE LEAVING THE CAR PARK”. The motorist is also advised that failure to comply with the terms and conditions will result in a Parking Charge Notice (PCN) being issued for £100. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 10:59, and exiting at 13:27, a total duration of 2 hours and 28 minutes. The operator maintains a list of vehicles permitted to park on the site and the appellants vehicle was not found when the operator searched the list. I will now examine all the information provided to determine if it makes a material difference to the validity of the PCN. The appellant’s case is that they do not believe the change of parking terms has been made clear enough to alert patrons of the changes. They say the signs are not clear from the middle of the car park and the route the appellant took there were not visible. They also explain that no machines are visible, and the signs are in black and white which do not stand out. The British Parking Association (BPA) has a Code of Practice, which sets out the standards for its parking operators. Section 19 states: “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle”. Furthermore, it states that they must, “Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand” and “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. You must use signs to make it easy for them to find out what your terms and conditions are”. The signs do not need to be placed directly in the position where parked, they simply must be placed throughout the site so that drivers are given the chance to read them. I have considered the signage, the site map and the evidence provided by the appellant in this case. The operator has advised they have been managing the car park since May 2020 which has also been supported by the images of the signs in the car park. While I understand this may have been the first time the appellant visited the site since the operator has taken over, I am satisfied the signage on site, considering the site size is sufficient. Further, within the appellants appeal to the operator, they have confirmed they saw the signage as they state they had made payment as required. As such, I do not agree that the signage is not visible, and I believe they are adequately placed throughout the site to bring the parking terms to a motorist’s attention.

 The appellant says the site should not be using ANPR as a Council ran car park as this is illegal. Section 7 of the British Parking Association (BPA) Code of Practice states that a parking operator must have written authorisation from the landowner or an appointed agent prior to enforcement commencing on a private car park. The written authority must state that the landowner or its appointed agent is required to keep to the BPA Code of Practice and that authority has been granted to issue enforcement and pursue outstanding charges. However, although the BPA Code of Practice outlines what authorisation must set out my observations extend beyond checking documentation; it includes consideration of the fact that there is equipment, signage and on occasion personnel on site to manage the function of enforcement and this cannot happen without the landowner’s authority. I am sure that if the parking operator was not allowed to issue charges on site the landowner would not permit the parking operator to keep its signage on site nor would the landowner allow motorists to park on its land without authorisation. Based on the information supplied by the parking operator I am satisfied that it meets with the minimum standards set out by the BPA Code of Practice and is compliant. Section 23.16b of the BPA Code of Practice states, “Witness statements were introduced as an alternative to the provision of a full/redacted landowner contract within an independent appeal evidence pack and as such these statements must be signed by a representative of the landowner or his agent, and not by a member of the operator’s staff”. I am satisfied that the document supplied by the parking operator is sufficient. The car park in question is private land and not public land therefore, the landowner is authorised to order whatever restrictions they wish on the land along with dictate how they wish such restrictions to be monitored. In this case, the landowner has given permission to the parking operator to monitor the land on their behalf in the form of payment to park. They have also given permission to issue parking charge notices in the event a breach of those terms are identified, such as a motorist not paying for parking but utilising the car park facilities. 

They feel the parking charge amount is extortionate. This matter was considered at length by the Supreme Court in the case of ParkingEye v Beavis [2015] UKSC 67. In this case, the Court recognised that parking charges have all the characteristics of a penalty, but nevertheless were enforceable because there were legitimate interests in the charging of overstaying motorists. This “legitimate interests” approach moved away from a loss-based analysis of parking charges: “In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss… deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.” (paragraph 99) The Court did however make it clear that the parking charge must be proportionate: “None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.” (paragraph 100) It concluded that a charge in the region of £85 was proportionate, and it attached importance to the fact that the charge was prominently displayed in large lettering on the signage. While the specific facts of the case concerned a free-stay car park where the motorist had overstayed, I consider the principles that lie behind the decision remain the same. Taking these principles into account, I am not going to consider whether the loss is a genuine pre-estimate of loss or whether it reflects a correct loss to the landowner. Rather, I am going to consider the charge amount in the appellant’s case, as well as the signage. On this, I conclude the charge is appropriately prominent and in the region of £85 and is therefore allowable. From the evidence provided by the operator, I can see that there is signage at the entrance to the car park and multiple signs are located throughout the site. I am satisfied therefore, that the appellant had the opportunity to read and understand the terms and conditions before agreeing to the contract. In this case, the driver entered the car park in full acceptance of the terms of parking clearly displayed. Terms and conditions are offered; and by remaining in the car park, these are accepted. Ultimately, it is the driver’s responsibility prior to leaving their vehicle in the car park, to seek out the terms of parking, ensure that they understand them and to ensure that the vehicle is parked in accordance with the terms and conditions of that site. Therefore, from the evidence provided by both parties, I conclude that the operator issued the PCN correctly and as such, the appeal is refused.

Coupon-mad

Hilariously awful POPLA decision!

I got your pms which have been really useful, thankyou.

I suggest you respond one more time to Swanley Council telling them this is a formal request for them to refer your concerns about illegal ANPR and running public car parks as if they were 'private land' to their Monitoring Officer.  You require acknowledgement of this final stage of complaint and a final response in a timely fashion, once the Monitoring Officer has properly considered the applicable laws and the previous Kent LGO decision.  If the Council fail to respond, or if the response is unacceptable, you will be making a LGO complaint and attaching all your evidence.

KeithP

@RR7316, what happened next?

RR7316

Thanks @Coupon-mad, I have only just seen this. @KeithP my ticket was still cancelled by Swanley council but I will follow up the complaint regarding coupon mad's last comment now and update with any progress.