Initial Parking: Fistral Beach - POPLA Appeal - Advice Please

Redman2186

Am back, this time we haven't ignored notice to keeper (mainly because it actually turned up and not at a previous address).

We recently returned from Cornwall, and received a notice to keeper (for £100) for having overstayed our welcome.

The Facts -

1. ANPR captured vehicle entering at 3.01 and exiting at 16:28
2. Vehicle entered car park at 3.01pm - I estimate that parking took approx.12mins 
3. We tried to pay for 3 hours parking on app - No joy, the app was not working (no screenshot unfortunately)
4. We tried to phone to pay for 3 hours parking - No joy, the phone number was out of action and advised we should pay at machine (Have a screenshot which show 3 calls to 01234 862178 ay 13:14, 13:15 and 13:17 for 20, 29 and 14 seconds respectively).
5. Gave up on technology, went to get cash at surf hire - Paid for 3 hours parking in machine 13:20 - 16:20 (Have a screenshot of our parking receipt)
6. Left beach at 16:15 and tried to exit car park eventually navigating the holiday traffic and exiting at 16:28

Initial parking have rejected our initial appeal and said they are upholding the £100 for the 27minute overstay, despite us telling them that we we not parked for the 3 hours and 27 minutes, citing grace period etc. 
We effectively have a ticket for £100 for overstaying by 8minutes (according to ANPR) despite not being parked for the entire duration and having a receipt for 3 hours..

Question - Now at POPLA stage 

1. Should I just go with "Grace Period" element for this appeal using the following as a template. Or, are we missing further vital points that should be included: https://drive.google.com/file/d/1v_W_UseWdI_d_9WWMUfVecx0uDUYOwKs/view 

Thanks in advance.

Fruitcake

Use all the points available to you from the third post of the NEWBIES.

This will include,
Not the landowner
No standing to issue charges in their own name
Inadequate signage
Grace periods
ANPR does not record parking time, only time on site. (Break it down into four elements: the time to find a space, the time to try to pay by app/'phone, parking time, and the time to leave.)
Frustration of contract (unable to pay by 'phone/lack of signal. Include phone logs to show the times of attempts to pay, plus the sign showing the 'phone number you called).
Whole parking period was paid for so no breach of Ts and Cs.

Include this court report from the Parking Prankster's blog that was actually for the same car park, but before Initial began to infest the site. Forget the point about no pre-estimate of loss though, but do highlight the rest.

Parking Prankster: Waiting for a space is not Parking. ParkingEye lose in court. Beware of snakes at Fistral Beach (parking-prankster.blogspot.com)

Do a forum search for a poster called Ivor Paycheck. He posted a video (a while ago now, but still relevant) of the car park showing how long it takes to get from one end to the other, and how busy it is with driver's having to dodge hoilliday makers and their kids.

The link in this post might be useful as it shows signs and the landowner contract shortly after Initial took over at Fistral Beach.

FISTRAL BEACH, Newquay, Inital Parking.. please help!! - Page 5 — MoneySavingExpert Forum

Umkomaas

The PPC will be working on the basis of parking commencing at 3:01, you paying at 3:20 doesn't entitle you to 3 hours to 16:20. POPLA may well side with them, so you need to be fully aware of the persuasive judgment in NCP v HMRC - Time of parking runs only from the point of obtaining the ticket, not on entry to car park.

https://forums.moneysavingexpert.com/discussion/6004010/ncp-appeal-tax-man-1-ncp-nil

https://www.bailii.org/ew/cases/EWCA/Civ/2019/854.html

It won't be straightforward plain sailing as POPLA won't want to risk upsetting the PPC, but the judgment is there to use, and it is legally 'persuasive'. Let's see if POPLA want to fly in its face!

Redman2186

Thoughts much appreciated on Section 1 of POPLA Appeal please as this is the main part - working on 2-7 today and will add later.

_______________________________________

Appeal re POPLA Code: xxx v Initial Parking

 

Vehicle Registration: [XXX]

POPLA ref: xxx

I, the registered keeper of this vehicle, received a letter dated 23rd August 2022 acting as a notice to the registered keeper. My appeal to the operator – Initial Parking – was submitted and acknowledged on 25th August 2022 but subsequently rejected by an email a couple of hours later on the 25th August 2022. 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. Signs in this car park are not prominent, clear or legible from all parking spaces

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

4. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach

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

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

7. The ANPR System is Neither Reliable nor Accurate

1. Grace Period: BPA Code of Practice–non-compliance

The BPA’s Code of Practice states (13) that there must be a grace period added to the end of a parking event:

BPA’s Code of Practice (13.3) states that:

Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.”

It is therefore argued that the visit in question (which Initial Parking Ltd claim gave rise to an “Unpaid Tariff Time”) contains a not an unreasonable grace period at the end of the parking event, given the following sequence of events:

                      i.            Entry: The vehicle entered the site of Fistral Beach on 17th August 13:01:09 [Evidence 1 & 2 – Image 1 shows Fistral Beach and Car Park and Image 2 shows just how busy Fistral Beach gets on a summer’s day]

                     ii.            Time Looking for a space: The vehicle circled the car park looking for approximately 10minutes trying to find an available parking space.

                   iii.            Attempting to pay:

a.        We first tried Initial Parking’s App of choice JustPark. The Mobile App was not working [Evidence 3 – shows JustPark error message for Fistral Beach] – at this point we had not agreed to any T&Cs, we had not even seen the price of parking because there was a lack of signage next to the car (I will evidence this later) and the App was not working.

b.        Having no luck with the App we sought out one of the signs to see if there was a number to call – We found 01234 862178 – Which despite 3 attempts in quick succession yielded no success. The number provided simply cut out 3 times in succession [Evidence 4 – Shows call log of 3 outgoing calls at 13:14, 13:15 and 13:17]. At this point we had not agreed to any T&Cs, we had not even seen the price of parking because there was a lack of signage next to the car (I will evidence this later) and the App was not working.

c.         Recognising that mobile was not an option, we took a trip to the surf shop to obtain change for the parking machine. Parking was paid for at 13:20 for 3 hours until 16:20 [Evidence 5 – Shows our receipt for 3 hours parking and Evidence 6 - Judgement from Lord Justice Newey in NCP v HMRC]

                                                                            i.      Evidence 6: Judgement from Lord Justice Newey in NCP v HMRC - Time of parking runs only from the point of obtaining the ticket, not on entry to car park [https://www.bailii.org/ew/cases/EWCA/Civ/2019/854.html] where paragraphs 18,19 & 20 from the judgment make it clear that the offer and acceptance takes place when the paying motorist inserts the coins & hits the green button when the bargain is actually made & accepted):

 

18. English law, of course, generally adopts an objective approach when deciding what has been agreed in a contractual context. Here, it seems to me that, taken together, the tariff board and the statement that "overpayments" were accepted and no change given indicated, looking at matters objectively, that NCP was willing to grant an hour's parking in exchange for coins worth at least £1.40. In the hypothetical example, the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed. On that basis, the pressing of the green button would represent acceptance by the customer of an offer by NCP to provide an hour's parking in return for the coins that the customer had by then paid into the machine. At all events, there is no question of the customer having any right to repayment of 10p. The contract price was £1.50.

 

19. This is the contractual analysis in the hypothetical example where the customer has only a pound coin and a 50p piece, and therefore has no alternative but to pay £1.50 if she wishes to park in the car park. However, the analysis is the same even if it is possible for the customer to obtain the right coins, for example by obtaining change from another user of the car park. If the customer nevertheless chooses to insert £1.50 and presses the green button, it remains the case that she has accepted the offer to provide an hour's parking at that price.

20. This analysis may be slightly different from that of the UT, which referred to an offer by NCP to grant the right to park for up to one hour in return for paying an amount between £1.40 and £2.09. In fact the offer made by NCP is more specific, to grant the right to park for an hour in return for the coins shown by the machine as having been inserted when the green light flashes. That is the offer which the customer accepts.

 

                   iv.            Parked: From 13:20 to enjoy time on the beach until approximately 16:15 when we packed up the vehicle to leave.

 

                    v.            Time to Leave: The vehicle excited the space at approximately ~16:20 at the end of our parking session. Unfortunately the car park is poorly designed and near standstill single file traffic is a common theme as beach comers waited patiently for beach goers to exit a space. This resulted in our vehicle exciting the car park (captured on ANPR at 16:28:28) a mere 8 minutes and 28 seconds after the 3hours that we had paid for parking. It should be noted that the vehicle was not parked during this time just merely trying to leave.

 

It is argued that given the circumstances and inline with the BPA’s code of practice (in particular 13.3), 8 minutes and 28 seconds is not an unreasonable amount of time to exit a car park, particularly one as busy as Fistral Beach in the height of summer. In fact, it is far less than the BPA’s mandated period of at least 10minutes.

There was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road another parking location for Fistral Beach, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” albeit in this case the appellant hadn’t even managed to find a parking space. Details of the case can be found here.

There is also the following from 2014 at the exact same location which serves to prove just how busy Fistral Beach car park is and that waiting time does not constitute parking:

3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. 

Coupon-mad

Get rid of 6 and 7 which won't wash at POPLA.

Redman2186

Thanks @Coupon-mad - saves me an hour or so!

Does point 1 read ok?

Umkomaas

You need to sort out all the paragraph numbering/lettering. There's a mix of all sorts which appears (whether correct or not) to be chunks of copy and pastes from here there and everywhere.

Get it all consistent .... and simple .... so a POPLA Assessor isn't getting confused by the complication. 

Redman2186

Evening all - Quick check in to see if I've produced a robust enough POPLA appeal (2 parts - this is Part 1 of 2)

How does the below read - looking to submit this evening or latest tomorrow morning. Think I've covered everything.
Will also double check the paragraph numbering on the pdf (doesn't copy in nicely). As always appreciate your steer and guidance, thanks. 

I, the registered keeper of this vehicle, received a letter dated 23rd August 2022 acting as a notice to the registered keeper. My appeal to the operator – Initial Parking Ltd – was submitted and acknowledged on 25th August 2022 but subsequently rejected by an email a couple of hours later on the 25th August 2022. 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:

ID	Grounds	Page
1	Grace Period: BPA Code of Practice – non-compliance	1-2
2	Signs in this car park are not prominent, clear or legible from all parking spaces	2
3	No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice	3
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	4
5	No Evidence of Period Parked – NtK does not meet PoFA2012 requirements	5
Evidence pack is provided on Page 6 onwards

 

1. Grace Period: BPA Code of Practice–non-compliance

The BPA’s Code of Practice states that there must be a grace period added to the end of a parking event (13.3) states that:

“Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.”

It is therefore argued that the visit in question (which Initial Parking Ltd claim gave rise to an “Unpaid Tariff Time”) contains a not an unreasonable grace period at the end of the parking event, given the following sequence of events:

1.1        Entry: The vehicle entered the site of Fistral Beach on 17th August 13:01:09

-        [Evidence 1] image showing Fistral Beach and Car Park

-        [Evidence 2] image showing just how busy Fistral Beach gets on a summer’s day

 

1.2        Time Looking for a space: The vehicle circled the car park looking for approximately 10minutes trying to find an available parking space. Eventually securing a space at the point marked in [Evidence 3]. Please note as indicated in [Evidence 4] that there is a lack of signage in this location.

-        [Evidence 3] image showing approximate location of our parking space

-        [Evidence 4] image showing location of signage & approximate location of our parking space, noting there is no signage near to where we parked, in fact there is a lack of signage completely along the beach edge of the car park

 

1.3        Attempting to pay:

1.3.1        I found a sign showing me options to pay via mobile [Evidence 5]

-        [Evidence 5] image showing options to pay for parking via mobile, noting there is no mention of cost or any T&Cs

1.3.2        We first tried Initial Parking Ltd’s App of choice JustPark. The Mobile App was not working and provided and error message [Evidence 6]. At this point we had not agreed to any terms and conditions, we had not even seen the price of parking because there was a lack of signage next to the car as previously show in [Evidence 4].

-        [Evidence 6] image showing JustPark App error message for Fistral Beach

1.3.3        Having no luck with the App we moved on to option 2 and tried the telephone number 01234 862178 provided in [Evidence 5]. Despite 3 attempted calls in quick succession, we had no success. The number provided simply cut out 3 times [Evidence 7]. At this point we had still not agreed to any terms and conditions, we had not even seen the price of parking because there was a lack of signage next to the car as previously show in [Evidence 4].

–          [Evidence 7] image showing our call log with 3 outgoing calls to JustPark telephone number at 13:14, 13:15 and 13:17. At this point we had therefore still not agreed to any T&Cs, we had not even seen the price of parking because there was a lack of any T&C signage next to the car (I will evidence this later) and the App was not working.

1.3.4        Recognising that mobile was not an option, we took a trip to the surf shop to obtain change for the parking machine. Parking was paid for at 13:20 for 3 hours until 16:20 [Evidence 8].

–          [Evidence 8] image showing our receipt for 3 hours parking from 13:20 to 16:20

–          [Evidence 9] - Judgement from Lord Justice Newey in NCP v HMRC – Where it was determined that time of parking runs only from the point of obtaining the ticket, not on entry to car park

 

1.4       Parked: From 13:20 to enjoy time on the beach until approximately 16:15 when we packed up the vehicle to leave.

 

1.5       Time to Leave: The vehicle excited the space at approximately ~16:20 at the end of our parking session. Unfortunately, the car park is poorly designed and we were stuck in near standstill single file traffic as beach comers waited patiently for beach goers to exit a space. This resulted in our vehicle exciting the car park (captured on ANPR at 16:28:28) a mere 8 minutes and 28 seconds after the 3hours that we had paid for parking. It should be noted that the vehicle was not even parked during this time, just merely trying to leave.

 

It is argued that given the circumstances and in line with the BPA’s code of practice (in particular 13.3), 8 minutes and 28 seconds is not an unreasonable amount of time to exit a car park, particularly one as busy as Fistral Beach in the height of summer. In fact, it is far less than the BPA’s mandated period of at least 10minutes.

There was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road another parking location for Fistral Beach, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” albeit in this case the appellant hadn’t even managed to find a parking space. Details of the case can be found here.

There is also the following from 2014 at the exact same location which serves to prove just how busy Fistral Beach car park is and that waiting time does not constitute parking:

3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked.

 

2. Signs in this car park are not prominent, clear, or legible from all parking space.

The BPA’s Code of Practice (19.3) 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. 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”

As previously referenced and shown (1.1.2) – Evidence 4 there is a lack of signage along the entire beach front edge of the car park. As can be seen in [Evidence 1] there is space for approximately 30 cars along this beach front edge. A rough estimate of 3.5m per space would mean that Initial Parking Ltd have left a 100m plus strip in the car park without any signage. Depending on where the vehicle is parked on this strip, you could be approximately 50m from the nearest sign (with the closest signs being on the opposite side of the car park which is roughly 50m away as well). Our vehicle as evidenced in [Evidence 3&4] was parked approximately halfway along this strip with no signage i.e. the closest signage was approaching 50m in any direction. This is in direct contravention of the BPA code of practice where the signage is clearly not prominent or clear or legible from all parking spaces.

In addition to the lack of signs, Initial Parking Ltd’s main car park sign is inadequate and illegible in several ways, not least because of the sheer amount of text that must be read. It clearly violates BPA’s Code of Practice (19.3) [Evidence 10 & 11] The sign is unremarkable, and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together 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.

-           [Evidence 10] image showing Terms and Conditions sign next to payment machine

-           [Evidence 11] image showing the Terms and Conditions on a computer-generated version of the sign

This case is 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 19.3 of the BPA Code of Practice.

From the image shown in [Evidence 10], the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put Initial Parking Ltd to strict proof as to the size of the wording on their signs.

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: https://www.thesignchef.com/sizing_guide.php ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

 

When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the terms and conditions are even challenging to read when mere feet away. The signs are inadequately distributed throughout the car park and the terms and conditions illegible.

 

Redman2186

(Part 2 of 2)

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

The alleged contract between Initial Parking Ltd and the Landowner [Evidence 12] fails the requirements of the Companies Act 2006, and therefore is not a valid contract. Companies Act 2006 Section 44 https://www.legislation.gov.uk/ukpga/2006/46/section/44

44 Execution of documents

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—

(a) by the affixing of its common seal, or

(b) by signature in accordance with the following provisions.

 

(2) A document is validly executed by a company if it is signed on behalf of the company—

(a) by two authorised signatories, or

(b) by a director of the company in the presence of a witness who attests the signature.

 

(3) The following are “authorised signatories” for the purposes of subsection (2)—

(a) every director of the company, and

(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

The alleged contract has not been executed in accordance with paragraph 1 because it has not been signed by two people from each company nor by a director and witness of each company in accordance with the requirements of paragraph 2, and has not been signed by authorised signatories as defined in paragraph 3.

In addition, the signatures are illegible and therefore you require the scammers to prove they are actually employees of the two companies concerned as there is no indication on the document that they actually work for the two named companies or in what capacity.

As such the contract is not valid in accordance with the above Act of Parliament, and thus the PCN is also invalid.

 

Furthermore, the BPA’s Code of Practice (section 7) states:

7 Written authorisation of the landowner

 

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

 

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 partyto the agreement
(Quote the relevant part of the BPA CoP concerning permission to operate and state that the contract failure is also a CoP failure)”

 

As this operator does not have proprietary interest in the land, I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights – is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Section 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance.

 

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 Initial 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 a company using ANPR must regularly evaluate whether it is necessary and proportionate to continue using it. It therefore follows that I require Initial Parking Ltd to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has “a lawful basis and is justified, necessary and proportionate”.

 

The ICO’s CCTV Code of Practice goes on to state:

 

“5.3 Staying in Control

Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:

•          • tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”

 

“7.6 Privacy Notices

It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear.

One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.”

 

Initial Parking Ltd has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Initial Parking Ltd has not stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork, Notice to Keeper or appeal rejection letter despite there being a Data Protection heading on the back of the Notice to Keeper. 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, I trust that POPLA will not be able to find that the PCN was properly given.

 

5. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

 Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the Notice to Keeper to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Initial Parking Ltd’s Notice to Keeper simply claims that the vehicle “entered Fistral Beach, Newquay, TR7 1HY at 13:01:09 and departed at 16:28:28”. At no stage does Initial Parking Ltd explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

Initial Parking Ltd uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the vast unbounded and unmarked area to calculate their length of stay. Any vehicle passing by will be captured by ANPR. Initial Parking Ltd, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Initial Parking Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Initial Parking Ltd are not able to definitively state the period of parking. I require Initial Parking Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the Notice to Keeper.

In light of the five grounds upon which this appeal is based and the evidence contained within this attestation, I trust that POPLA will see fit to order a dismissal of the associated parking charge notice.

Kind Regards,

[xxx]

Redman2186

Any further thoughts or good to go?