PCN - PARKING EYE - HALLSVILLE QUARTER, E16 - Pregnant + ill at the time - urgent advice pls?

atruefaker

@Coupon-mad thanks, I edited this as per your advice. 

Apologies but I have total baby brain. How do I find out who the landowner is? I already tried to appeal to Morrisons who I thought owned the land and they said it was nothing to do with them and to appeal to ParkingEye. 

Thanks again 

Umkomaas

atruefaker said:

How do I find out who the landowner is? I already tried to appeal to Morrisons who I thought owned the land and they said it was nothing to do with them and to appeal to ParkingEye. 

Thanks again 

SOME IDEAS ON DETERMINING WHO OWNS THE LAND 

1. Google searches

2. If a retail park, check on any signage which lists the on-site outlets

3. Ask retailers on the site if there is a managing agent

4. Ask retailers on the site to whom do they pay rent

5. Contact the local authority and ask who pays the non-domestic/business rate for the car park (some councils have a spreadsheet on their website)

6. Contact the local Valuation Office and ask if they know. They often have a website which might provide the information 

7. Contact The Land Registry and for around £3 they should be able to provide definitive detail

8. If you haven't already done so, give us the name of the car park/site/location, we may have seen other cases there.

atruefaker

Pls pls pls could I get some input on the following POLPA appeal which I need to submit today as I have not been well. Thank you so much!

Fruitcake

PoPLA codes last 32 days, so you may still have time. Don't rush this if you don't have to.

atruefaker

is there a way to share it with you as it says the body of text is too long? Google link to the doc - is that allowed on here? THanks

atruefaker

1/3 appeal parts

Appeal re POPLA Code: XXXX v Parking EyeLtd 

Vehicle Registration: XXXX

POPLA ref: XXXX

Parking Charge Notice - 1XXXX

I, the registered keeper of this vehicle, received a letter dated [28th October 2022] acting as a notice to the registered keeper. My appeal to the operator – Parking Eye Ltd – was  submitted and acknowledged on 15th Nov 2022 but subsequently rejected by email dated 14th December. 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) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) 

2) There are no entrance signs for the regular entry and signs in this carpark are not visible, prominent, clear or legible.  

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 

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

9) No Planning Permission from Newham Borough Council for  Pole-Mounted ANPR Cameras and no Advertising Consent for signage

10) BREACH OF THE EQUALITY ACT 2010 (MATERNITY PROTECTION)

1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.  ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b)  sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. 

Furthermore, paragraph 9(5) states:  ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived some 2.5 weeks (7th November 2022) after the alleged event.  Even if they had posted it on the same day that they describe as the ‘Date Issued’ (which ParkingEye never do in any case at all because they use a third party batch-mail system, Whistl or iMail or similar, which adds up to a week before a letter is posted) it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).

This means that ParkingEye have failed to act in time for keeper liability to apply.  

2. There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or  legible from all parking spaces. 

BPA’s Code of Practice (18.2) states:  

“Entrance signs play an important part in establishing a parking contract and  deterring trespassers. Therefore, as well as the signs you must have telling  drivers about the terms and conditions for parking, you must also have a  standard form of entrance sign at the entrance to the parking area. Entrance  signs must tell drivers that the car park is managed and that there are terms and  conditions they must be aware of.” 

BPA’s Code of Practice (18.3) states:  

“Signs must be conspicuous and legible, and written in intelligible language, so  that they are easy to see, read and understand.”  

BPA’s Code of Practice (Appendix states:  

“If you think there are other circumstances where it is impractical or undesirable  to have an entrance sign, you must tell us in advance and get our approval to  amend the sign or not have one.”  

“Signs should be readable and understandable at all times, including during  the hours of darkness or at dusk if and when parking enforcement activity takes  place at those times. This can be achieved in a variety of ways such as by direct  

lighting or by using the lighting for the parking area. If the sign itself is not directly  or indirectly lit, we suggest that it should be made of a retro-reflective material”  

Figures 1-5 below show views of the entrance/exit to the car park, around the time and with conditions,  similar to those of the case under discussion. It is straightforward to conclude from Figures 1-5 that: 

• There is no ground boundary marking indicating the start and end of the carpark or that this is private land, or there is a charge to park

• There is no clear sign indicating the entrance/exit of the venue 

All items above indicate the contravention of BPA’s Code of Practice (18.2) which states: “you must also have a standard form of entrance sign at the entrance to the parking area.” and (18.3): “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”  

Figure 1:: Outside street entrance to entry/exit of the venue 

Figure 2::Direct street entrance to entry/exit of the venue (right hand side) 

Figure 3::Direct street entrance to entry/exit of the venue (left hand side) 

Figure 4::Direct entrance to entry/exit of the venue (wide shot)

Figure 5:: Entrance ramp into entry/exit of the venue 

 

Figure 1 to 5 images show there is no marking on the road or signs which suggest the boundary of the venue. As a result, it is impossible for anyone to conclude that this is a controlled area is entered.

In addition to the lack of entry signs, ParkingEye Ltd’s main car park sign is inadequate and illegible in a number of ways, there is no visible signage from the space that the car was parked in (see Figures 6 and 7). It clearly violates BPA’s Code of Practice (18.3) and appendix B.  

Figure 6 - The car space the car was parked in at the time of the stated incident

Figure 7 - shows a wide shot of the parking space (taken after the incident in question to address the lack of visible or legible signs as required by the BPA’s Code of Practice)

The image in Figure 1-5 shows a close up of the main car park entry in the same lighting  conditions as the date/time for which the PCN has been issued. It is non-existent, therefore it is not immediately obvious as to what the parking terms and the wording is - which is further supported by Figures 6 and 7.

It cannot be reasonably assumed (particularly given this case took place at night) that a  driver drove past and could read a legible sign, that does not exist at the entrance to the car park, nor parked near one in the space that the car was parked in, in FIgure 6. 

When the driver arrived at the car park it was impossible to read, let alone understand the terms and conditions being imposed - as they were not visible on entry or in the space the car was parked in.  As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this  charge.  

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

Fruitcake

Split it across more than one post.

atruefaker

2/3 appeal parts

3. No Evidence of Landowner Authority 

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

Witness statements are not sound evidence of the above, often being pre-signed,  generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I  suggest it is unlikely to sufficiently evidence the definition of the services provided by  each party to the agreement. 

Nor would it define vital information such as charging days/times, any exemption  clauses, grace periods (which I believe may be longer than the bare minimum times  set out in the BPA Code of Practice) and basic information such as the land boundary  and bays where enforcement applies/does not apply. Not forgetting evidence of the  various restrictions which the landowner has authorised can give rise to a charge and  of course, how much the landowner authorises this agent to charge (which cannot be  assumed to be the sum in small print on a sign because template private parking  terms and sums have been known not to match the actual landowner agreement). 

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

7.2 If the operator wishes to take legal action on any outstanding parking charges,  they must ensure that they have the written authority of the landowner (or their  appointed agent) prior to legal action being taken. 

7.3 The written authorisation must also set out: 

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined 

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation 

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement 

d) who has the responsibility for putting up and maintaining signs e) the definition of the services provided by each party to the agreement.

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.” 

15 

“If you are already using a surveillance system, you should regularly evaluate  whether it is necessary and proportionate to continue using it.”  

“You should also take into account the nature of the problem you are seeking to  address; whether a surveillance system would be a justified and an effective  solution, whether better solutions exist, what effect its use may have on  individuals”  

“You should consider these matters objectively as part of an assessment of the  scheme’s impact on people’s privacy. The best way to do this is to conduct a  privacy impact assessment. The ICO has produced a ‘Conducting privacy impact  assessments code of practice’ that explains how to carry out a proper  assessment.”  

“If you are using or intend to use an ANPR system, it is important that you  undertake a privacy impact assessment to justify its use and show that its  introduction is proportionate and necessary.” 

“Example: A car park operator is looking at whether to use ANPR to enforce  parking restrictions. A privacy impact assessment is undertaken which identifies  how ANPR will address the problem, the privacy intrusions and the ways to  minimize these intrusions, such as information being automatically deleted when  a car that has not contravened the restrictions leaves a car park.”  

“Note:  

... in conducting a privacy impact assessment and an evaluation of proportionality  and necessity, you will be looking at concepts that would also impact upon  fairness under the first data protection principle. Private sector organisations  should therefore also consider these issues.”  

“A privacy impact assessment should look at the pressing need that the  surveillance system is intended to address and whether its proposed use has a  lawful basis and is justified, necessary and proportionate.”

The quotations above taken directly from the ICO’s CCTV Code of Practice state that  if Smart Parking Ltd wish to use ANPR cameras then they must undertake a privacy  impact assessment to justify its use and show that its introduction is  proportionate and necessary. It also states that Smart Parking Ltd must regularly  evaluate whether it is necessary and proportionate to continue using it.  

It therefore follows that I require Parking Eye 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.” 

Parking Eye Ltd has not stated on their signage (as there was none visible from the parked car) a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Parking Eye Ltd has not  stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on  any paperwork, NtK, reminder letter or rejection letter despite there being a Data  Protection heading on the back of the NtK. This is a mandatory requirement of the  ICO’s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the  BPA’s Code of Practice and a serious omission by any data processor using ANPR,  such that it makes the use of this registered keeper’s data unlawful.  

As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and  in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law,  POPLA will not be able to find that the PCN was properly given.

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

The BPA Code of Practice point 20.5a stipulates that:  

"When issuing a parking charge notice you may use photographs as evidence  that a vehicle was parked in an unauthorized way. The photographs must refer to  and confirm the incident which you claim was unauthorized. A date and time  stamp should be included on the photograph. All photographs used for  evidence should be clear and legible and must not be retouched or digitally  altered." 

The NtK in question contains two close-up license plate images. The time and date  stamp and license plate have been inserted into the underneath (but not part of) the  images. In addition, the first image does not even show a vehicle, only an inserted  image of the license plate and time stamp. Given the vast area that has neither been  bounded nor marked as parking restricted, any vehicle passing by can be captured by  ParkingEye  Ltd’s APRN. As a result, these images cannot be used as the  confirmation of the incident and Parking Eye Ltd claim was unauthorized. 

I require ParkingEye Ltd to produce evidence of the original images containing the  required date and time stamp and images showing the car is actually parked in the  location stated rather than just passing by. Given the unbounded nature of the venue,  failing to produce such evidence would indicate the Parking Eye Ltd has been using  APRN to engage random license plate collection of all vehicles passing by and send  NtK with the aim to extract penalty. Such action is no different from sticking parking  tickets to all vehicles passing by. 

Recent investigation (27 Apr 2018) by BBC  

(http://www.bbc.co.uk/news/business-43912327) shows that the private parking  industry is unregulated and does not have any accountability. Various cases show the industry’s priority is maximizing the penalty received from the motorist without due  regard to the integrity of the evidence. Private parking operators are financially  incentivized not to use the original image as evidence, but putting partial evidence together to generate a case biased towards generating a penalty fee. Based on the  fact above, I require ParkingEye Ltd to produce strong evidence, audited by a qualified third party, to prove that its process is not biased to suit its financial objective.

atruefaker

3/3 appeal parts

7. The ANPR System is Neither Reliable nor Accurate 

ParkingEye Ltd’s NtK simply claims “that the vehicle “entered [xxx] at [xxx] and  departed at [xxx]”. ParkingEye Ltd’ states the images and time stamps are collected  by its ANPR camera system installed on site. 

In terms of the technology of the ANPR cameras themselves, POPLA please take note and bin your usual 'ANPR is generally OK' template because: The British Parking Association DOES NOT AUDIT the ANPR systems in use by  parking operators, and the BPA has NO WAY to ensure that the systems are in good working order or that the data collected is accurate. Independent research has NOT found that the technology is 'generally accurate' or proportionate, or reliable at all, and  this is one of the reasons why Councils are banned from using it in car parks.  

As proof of this assertion here are two statements by the BPA themselves, the first  one designed to stop POPLA falling into error about assumed audits: 

Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong  decision' victim back in January 2018 regarding this repeated misinformation about  BPA somehow doing 'ANPR system audits', and Mr Clark says: 

"You were concerned about a comment from the POPLA assessor who determined your case which said: 

"In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate" You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us. 

This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to.

POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says: 

''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.'' 

Our auditors check operators compliance with this Code clause and not the cameras themselves.'' 

Secondly, ANPR data processing and/or system failure is well known, and is certainly  inappropriate in a mixed retail and residential area, such as the location in question.  The BPA even warned about ANPR flaws: 

http://www.britishparking.co.uk/Other-Advice#4 

''As with all new technology, there are issues associated with its use'' and they  specifically mention the flaw of assuming that 'drive in, drive out' events are parking  events. They state that: ''Reputable operators tend not to uphold charge certificates  issued in this manner''. 

In this case, as the driver drove in and briefly stopped where there are no signs or  bays at all (not in any retail area, but at a private residence not signed as being  managed by Smart Parking) the ANPR system has indeed failed and the operator has  breached the first data protection principle by processing flawed data from their  system. 

Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data  processing, was also condemned by the BPA and the ICO: 

http://www.britishparking.co.uk/News/excessive-use-of-anpr-cameras-for-enforceme nt

As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one  audits it except for the ICO when the public, or groups, make complaints. 

Parking Eye Ltd is put to strict proof that the system has not failed visitors to the  residential homes within this site. 

POPLA cannot use your usual 'the BPA audits it' erroneous template which needs  consigning to the bin. 

Please show the above email from Steve Clark, to your Lead Adjudicator. 

Kindly stop assuming ANPR systems work, and expecting consumers to prove the  impossible about the workings of a system over which they have no control but where  independent and publicly available information about its inherent failings is very  readily available.

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

As there were no signs to the venue - The signs fail to transparently warn drivers of what the ANPR data will be used for  which breaches the BPA Code of Practice and the Consumer Protection from Unfair  Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of  the cameras.  

Paragraph 21.1 of the BPA Code of Practice advises operators that they may use  ANPR camera technology to manage, control and enforce parking in private car parks,  as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this  technology and what it will use the data captured by ANPR cameras for.  

ParkingEye Ltd’s signs do not comply with these requirements because these car  park signage failed to accurately explain what the ANPR data would be used for,  which is a 'failure to identify its commercial intent', contrary to the BPA CoP and  Consumer law.  

There is no information indicates that these camera images would be used in order to  issue Parking Charge Notices. There is absolutely no suggestion in the sentence  above that the cameras are in any way related to Parking Charge Notices.

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

A search in Newham’s planning database does not show any planning  permission for the pole-mounted ANPR cameras for the Hallsville Quarter, London - Basement and Surface  nor does it show any advertising consent for signage exceeding 0.3m2. UK government guidance on advertisement requires: 

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

It is criminal offence to display an advertisement without consent.” This clearly proves Parking Eye Ltd is/has been seeking to enforce Terms &  Conditions displayed on illegally erected signage, using equipment (pole-mounted  ANPR cameras) for which no planning application had been made. I request ParkingEye Ltd provides evidence that the correct Planning Applications  were submitted (and approved) in relation to the pole-mounted ANPR cameras and  that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to  which this appeal relates (22 October 2022). 

10. BREACH OF THE EQUALITY ACT 2010 (MATERNITY PROTECTION)

As well as the numerous breaches of the BPA. I wish to point out to POPLA that in ignoring the appeal to them about a pregnant woman being ill, ParkingEye has breached UK maternity protection law as covered in the Equality Act 2010. The maternity section of the Equality Act makes it unlawful to harass a pregnant lady (in or out of the workplace) for any reason connected to her condition.

The delay in leaving the car park was caused due to pregnancy condition, Hyperemesis gravium. Operators - and indeed POPLA adjudicators - have to abide by UK laws, which take precedence over any 'contractual' terms & conditions relating to Maternity protection..

I realise that POPLA cannot normally consider mitigating circumstances but in fact this 'charge' cannot be upheld by POPLA as the ParkingEye is in breach of the Equality Act as soon as they knew about the passenger’s protected condition.

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the Equality Act 2010. It is unfair and punitive and, as such, I respectfully request that this appeal be allowed.

END

atruefaker

Fruitcake said:

Split it across more than one post.

Thank you, I have done - appreciate you getting back so quickly!