Euro Car Parks Ltd POPLA appeal draft help.

mysticalsoul786

Hi All, 

I came across you helpful bunch from a youtube video comment section, I have read the newbies thread, and done plan A, Iceland Foods were not helpful via facebook, email, phone, or in store, the manager instore actually said, he can do it, but wont for we are members of the public lol. He will do it for staff and contractors. I will write to the MP, but am drafting this popla appeal too.

We have not received a yellow ticket on a car, just a NtK, we have not stated who the driver was on the appeal to euro car parks. We have followed the newbies thread template appeal, re jigged it a little, however that was rejected with the usual pofa 2012 etc. They didnt address some of the points discussed. 

The rejected appeal document shows good signs at the car park, the £100 is bold and a bigger font.

The NtK seems POFA compliant (says pass on to the driver), apart from the images not being date/timestamped on the image, I saw the popla decisions thread, and someone won an appeal because of the NtK not having time stamps on photo, and the ones ECP later gave seemed to have been edited to fit the time in. 

Here is the draft:

Appeal re POPLA Code: [Unique POPLA Verification Code: XXXXX] v Euro Car Parks Ltd

Vehicle Registration: XXXX

POPLA ref: [Unique POPLA Verification Code: xxxxx]

I, the registered keeper of this vehicle, received a letter dated [02 February 2024] acting as a notice to the registered keeper. My appeal to the operator – Eurocarparks Ltd – was submitted and acknowledged on [12 February 2024] but subsequently rejected by a letter dated 14th February 2024. 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) 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.  Furthermore, there is no marked parking bay at the location nor boundary  of the venue 

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 Leicester City Council for  Pole-Mounted ANPR Cameras and no Advertising Consent for signage

10) Notice to Keeper wording not POFA 2012 compliant.

 

1. Grace Period: BPA Code of Practice– 

non-compliance 

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start. 

BPA’s Code of Practice (A8.4) states that: 

“If a driver is parking without your permission, or at locations where parking is not  normally permitted they must have the chance to read the terms and  conditions before they enter into the ‘parking contract’ with you. If, having  had that opportunity, they decide not to park but choose to leave the car park, you  must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” 

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

“13.1 The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes”

As there was no parking available, hence no contract, and the small car cark does not let you go around, rather you have to do a three point turn or reverse out of a lane/row of parking, overcrowding of cars can cause blockages and situations of traffic jams if a car is in front, and another few cars are behind you.

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

“13.3 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..” 

The BPA Code of Practice (13.1) and (13.3) clearly state that the Grace Period to  enter and leave the car park should be a minimum of 10 minutes. Whilst (13.1) and  (13.3) do not apply in this case (it should be made clear - a contract was never  entered in to), it is reasonable to suggest that the minimum of 10 minutes grace  period each should apply to (13.1) BPA’s Code of Practice. 

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

 

“The BPA’s guidance specifically says that there must be sufficient time for the  motorist to park their car, observe the signs, decide whether they want to comply  with the operator’s conditions and either drive away or pay for a ticket.”  

“No time limit is specified. This is because it might take one person five minutes, but  another person 10 minutes depending on various factors, not limited to disability.”  

It is therefore argued that the duration of visit in question (which Euro Car Parks Ltd claim was) is not an unreasonable grace period, given the traffic jam/blockage in the car park due to lack of car parking spaces/bays during a busy Saturday 27-01-2024. More points are:

. a) The site is not well lit and relies on nearby street lighting as its primary source of lighting.  

. b) Visibility was hindered further as the site was in darkness at time of the visit was winter on a gloomy dark day.

. c) The lack of sufficient entrance signs and specific parking-terms signage  throughout the car park in question (non- compliance with BPA Code of Practice  19.2 and 27.2) and the impact of that upon time taken to locate signage prior to  entering into a contract. 

. d) There is no marked parking bay through out the venue which causes  confusion to the applicability of the Euro Car Parks Ltd’s contract, that was never  entered into in the first place. 

. e) The failure to light signage so as to make signs visible from all parking  spaces (which they are not, especially at night time) and legible once located. 

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

All factors discussed above serve merely to increase the time taken to:  ● Locate a sign indicating entrance 

● Locate a sign containing the terms and conditions 

● Read the full terms and conditions in the darkness

 

● Decipher the confusing information being presented 

 

·         Being stuck in a traffic jam/cars blocking each other due to overcrowding within the car park, unable to get out.

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

● Safely leave the car park 

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

mysticalsoul786

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

As this operator does not have proprietary interest in the land, 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

I would like to question if Euro Car Parks Ltd has authority to issue PCNs. The contract must be shown, signed and dated, and how the hours of operation on the contract are. This will allow POPLA to confirm if the contract is either incorrect, the signage is incorrect and that the operator is not following the terms of the contract.

 

Also Euro Car Parks have identified themselves as the 'creditor' in the Notice To Keeper I received. The signage clearly states that Euro Car Parks manage the car park on behalf of Iceland Foods.

A disclosed principal means that the contract is with Iceland Foods, especially where an agent takes no responsibility for the land.

The authority of Fairlie v Fenton (1870) LR 5 Ex 169, is authority for the legal position, that where there is a disclosed principal, an agent cannot sue.

Therefore Euro Car Parks is not established as the creditor, has no standing to litigate and is merely acting as an agent, issuing charges on behalf of the principal, the disclosed landowner Iceland Foods.

 

Therefore as Registered Keeper, I cannot be held liable for this charge.

 

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 (22.4) 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 (22.4) refers to is the CCTV Code of Practice found at:  

“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 Euro Car Parks 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 Euro Car Parks Ltd must regularly  evaluate whether it is necessary and proportionate to continue using it.  

It therefore follows that I require Euro Car Parks 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.” 

 

Euro Car Parks Ltd has not stated on their signage a Privacy Notice explaining the  keepers right to a Subject Access Request (SAR). In fact, Euro Car Parks 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.

mysticalsoul786

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 NtK to:  

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

Euro Car Parks Ltd’s NtK simply claims that the vehicle “entered [Leicester Mansfield Street] at [14:37] and  departed at [14:53]”. At no stage does Euro Car Parks Ltd explicitly specify the “period of  parking to which the notice relates”, as required by POFA 2012. 

Moreover Euro Car Parks Ltd have not provided any pictures of the car parked in a bay, they are just using entrance and exit times.

Euro Car Parks 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. Euro Car Parks Ltd, however, does  not provide any direct evidence of its alleged violation. It is not in the gift of Smart  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, Smart  Parking Ltd are not able to definitively state the period of parking. 

I require Euro Car Parks 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  NtK.

I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the vehicle parked in the bay, not just the photos of the vehicle entering and exiting a carpark.

 

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

The BPA Code of Practice point 21.5a 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 not been inserted into the photo/picture. In addition, the images does not even show a vehicle, only an inserted image of the license plates and No time stamp on the photo. Given the vast area that has neither been bounded nor marked as parking restricted, any vehicle passing by can be captured by  Euro Car Parks Ltd’s APRN. As a result, these images cannot be used as the confirmation of the incident and Euro Car Parks Ltd claim was unauthorized. 

Please review the copy of the NTK provided, and I am sure you will not be satisfied that the images of the vehicle number plate on the NTK are compliant with Section 21.5a of the BPA Code of Practice.

These images are not date stamped, after reading this Euro Car Parks may send you more photos with digitally altered photos to show the date and time, however the fact they are not on the NtK in the first place, proves the NtK is not compliant.

I require Euro Car Parks 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 Euro Car Parks 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  

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 Euro Car Parks Ltd to produce strong evidence, audited by  qualified third party, to prove that its process is not biased to suit its financial  objective.

 

7. The ANPR System is Neither Reliable nor Accurate 

Euro Car Parks Ltd’s NtK simply claims that the vehicle “entered [Leicester Mansfield Street] at [14:37] and  departed at [14:53]”. Euro Car Parks Ltd states the images and time stamps are collected  by its ANPR camera system installed on site, however the images on the NtK has no dates or time stamps.

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 22.3 of the BPA Code which says: 

''22.3 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: 

''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: 

23 

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. 

Euro Car Parks 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. 

Furthermore 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. 

The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. 

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

The Euro Car Parks’ main sign states:

“We are using automatic number plate recognition and/or handheld cameras to capture images of vehicle number plates to monitor and enforce the above term and conditions.” 

Specifically missing from this sentence is the vital information that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices. The Euro Car Parks’ sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states

“Failure to comply with the terms and conditions will result in the issue of a £100 parking charge notice (60 if paid within 14 days of issue).” 

In circumstances where the terms of a notice are not negotiable 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. 

 

I also refer to 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. 

 

 Paragraph 69:

Contract terms that may have different meanings:

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

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

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.

mysticalsoul786

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

The signs fail to transparently warn drivers of what the ANPR data will be used for  which breaches the BPA Code of Practice and the Consumer Protection from Unfair  Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of  the cameras.  

Paragraph 22.1 of the BPA Code of Practice advises operators that they may use  ANPR camera technology to manage, control and enforce parking in private car parks,  as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this  technology and what it will use the data captured by ANPR cameras for.  

Euro Car Parks 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 Leicester City Council for Pole-Mounted ANPR Cameras and no  Advertising Consent for signage 

A search in Leicester City Councils planning database does not show any planning  permission for the pole-mounted ANPR cameras for the Leicester, Mansfield Street Car Park,  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 Euro Car Parks 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 Euro Car Parks 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 (29 Mar 2018). 

 

10) Notice to Keeper wording not POFA 2012 compliant.

 

The Notice to Keeper (NtK) shown from Euro Car Parks Ltd, use the words "You are advised..." instead of "You are warned..." when referring to the 28 days after which the Registered Keeper (RK) will become liable.

PoFA 2012 9(2)(f) specifically states "The notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given..."

The following argument could be used to hammer the point home:

In arguing the case that a Notice to Keeper (NtK) from an unregulated private parking company is invalid due to the use of "advised" instead of "warned" in relation to liability, POPLA should consider the following points:

1. **Specific Language of PoFA 2012

   - The Protection of Freedoms Act 2012 (PoFA 2012) sets out specific requirements for NtKs, particularly in relation to the liability of the registered keeper (RK). It explicitly uses the term "warn" when describing the notification to the keeper about their potential liability.

 

2. **Legal Precision

   - Legal documents and statutes are often drafted with precision. If the legislation specifies the use of the term "warn", it implies a deliberate choice of language, and deviation from this language may be argued as a failure to meet the legal requirements.

 

3. **Intent and Clarity:**

   - The use of the term "warn" implies a certain level of seriousness and urgency. It suggests that the registered keeper needs to be clearly made aware of the consequences and potential liability. If the NtK uses the term "advised" instead, it may be argued that it does not meet the required level of clarity and seriousness as intended by the legislation.

 

4. **Purpose of Warning

   - PoFA 2012 includes the requirement for a warning to ensure that the registered keeper is informed about their potential liability and the importance of addressing the matter promptly. If the NtK uses a softer term like "advised", it may be contended that the purpose of the warning, which is to convey a sense of urgency and potential consequences, is not adequately fulfilled.

 

5. **Legislative Compliance:**

   - Compliance with legislative requirements is crucial for the validity of any legal document, including NtKs. If the language used in the NtK deviates from what is prescribed by the legislation, it may be argued that the document fails to meet the statutory requirements and, therefore, is not legally effective.

 

Notice to Keeper- the relevant land

The driver of the vehicle has not been identified. Therefore, the operator is pursuing the registered keeper for the PCN. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the PoFA 2012 must be adhered to.

The operator must meet schedule 4 paragraph 9(2)(a) which states: “(2) The notice must—(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

In this case the Notice to Keeper states the postcode as LE1 3GP, however there is no car park or street parking on LE1 3GP, a quick internet search will show this. The correct postcode for the Euro Car Parks is LE1 3DL, this incorrect postcode on the NtK alone should support POPLA to allow this appeal.

 

I would also like Euro Car Parks Ltd to answer this question:  Is this a penalty charge notice or an invoice? If it's supposed to be an invoice, it's missing details that would make it a legally valid document.  Until this question is resolved, we do not accept the charge.

 

I therefore request that you consider my appeal and cancel this unfair parking charge notice due to the reasons mentioned above.

 

Yours sincerely,

mysticalsoul786

I will go to the car park to take pics of signs, and add section 2, which has been missed out about the signage etc, hopefully there is lots of traffic on Saturday, so will show cars blocking each other in the car park, trying to find spaces. 

I appreciate the wording bit about warn on the POFA 2012 and advised on the NtK may not be strong, but why not lol. 

Coupon-mad

The NtK seems POFA compliant (says pass on to the driver), apart from the images not being date/timestamped on the image, I saw the popla decisions thread, and someone won an appeal because of the NtK not having time stamps on photo, and the ones ECP later gave seemed to have been edited to fit the time in.

Good research.

I'd remove 7 and 9 as they have no legs at POPLA.

mysticalsoul786

Hi Coupon-mad , thanks for your help, have learnt a lot reading through your posts, I'm glad there are people like you, fruitcake etc helping us newbies. Keep up the good work.

mysticalsoul786

Coupon-mad said:

The NtK seems POFA compliant (says pass on to the driver), apart from the images not being date/timestamped on the image, I saw the popla decisions thread, and someone won an appeal because of the NtK not having time stamps on photo, and the ones ECP later gave seemed to have been edited to fit the time in.

Good research.

I'd remove 7 and 9 as they have no legs at POPLA.

ECP have come back with a 33 page document against the popla appeal, I'm quite impressed. I was hoping they would just withdraw lol. 

the jist of it is:

This location is managed by Automatic Number Plate Recognition (ANPR) technology which takes a picture of the vehicle entering and exiting the site, these pictures are timed and therefore the duration of the stay can be calculated. All vehicle registration numbers are then matched against the data produced by the various means of paying for parking and a list of registration numbers where no payment has been made or where the motorist has stayed longer than the period paid is produced. After requesting vehicle keeper details from the DVLA, a Notice to keeper is sent to the keepers of the vehicles on this list. As a consequence at ANPR locations there will be no PCN issued to the windscreen neither will there be photographic evidence of the windscreen supplied in operator evidence packs.

Euro Car Parks can confirm the following: • Section 18.3 of the British Parking Association’s (BPA) code of practice explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand. • Signage on site is clear, when parking on private land it is the driver’s responsibility to read the signage displayed and parked accordance with the terms and conditions as stated. • Euro Car Parks have provided photographic evidence showing that the appellant remained at the site for 16 minutes (Figure 1) • Signage is visible when entering and inside of the car park and when entering private land it would be the driver’s responsibilty to read the terms and conditions and adhere to them. (Figure 2 – See Section 7). • Below is the transaction report of payments; there are no transactions matching XXXXXX

According to BPA Code of Practise 13.4 – car park operators should allow the driver a reasonable period to leave the private car park after the parking contract has ended; before enforcement action is taken. If the location is one where parking is normally permitted; the grace period at the end of the parking period should be a minimum of 10 minutes. •

Figure 3 confirms that the NTK is PoFA compliant. • Any form of parking ticket or ‘notice’ is issued under the law ‘of trespass and Contract Law’. A driver who is invited (or chooses) to park on private land and use the car parking facilities and pays a fee/s does so under a contract (signage) with the car park operator. The parking contract sets out the terms that apply to the parking service, including the price. • The contract (signage) clearly states the extra charges are that the driver will incur and have to pay if they decide to break the contract terms − for example, by parking longer than the time paid for or exceeding the maximum time limit applicable.

 • Automatic Number Plate Recognition systems are effectively image processing and microprocessor devices with an internal reference clock based around a set of components referred to as the ‘Real Time Clock chipset’ or RTC. The chipset uses a quartz crystal reference source and will provide a reliable time reference dependant on a drift characteristic determined by variations in local camera temperature. High fluctuations in local ambient can cause the RTC to drift as much as 30 seconds a month and to counteract this an NTP server is utilised. The NTP server is effectively a computer situated in a control room and takes a reference time source from a GPS satellite and provides a hyper accurate time reference. All camera systems operated by ECP are configured to request a time synchronisation from the NTP on a sixty second basis. This ensures that all cameras have a universal time reference which is accurate to a few thousandths of a second. Cameras also report a ‘heartbeat’ to our back office environment, again on a sixty second basis, and this is used to establish camera operation; logs of these transactions from all cameras are retained for approximately six months. On capture of an ANPR read this is transmitted to a similar back office environment where the time difference between that tagged on the raw capture and the ‘real time’ of the servers is again tested. • All ANPR cameras used by ECP are compliant under the home office approval framework as stated under NAAS/NASP. • Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the registered keeper’s responsibility to inform of the full name and address within 28 days beginning with the day after the notice was given. If the full amount remains unpaid, under Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’), Euro Car Parks have the right subject of the Act to recover from the keeper of the vehicle at the time it was parked so much of that amount which remains unpaid. • The Protection of Freedoms Act (PoFA) does not alter the principle of driver liability. What it does do, is to allow proceedings against the registered keeper for unpaid parking charges when the landowner or their agent, the parking operator does not know who the driver was at the time. • The creditor/operator must follow the procedures set out in PoFA Schedule 4 to achieve the benefits of keeper liability. • The car park is private property and signage on entrance and within the private car park clearly set out the rules and regulations of the car park and tariffs (if applicable). By entering the car park, parking and leaving the vehicle the driver has accepted the ‘contract’ and therefore if the driver fail to comply with the terms and conditions a parking charge notice will be correctly issued. • With regards to the reference to “Pre-Estimate of Loss/breach of consumer contracts 1999.” Please be advised that the Supreme Court has made judgement (04/11/15) that clearly sets out the issue of parking charge notices on private land (law of contract applies) and in particular pre-estimate of loss. The parking charge notice is enforceable on the basis that it protected a legitimate interest when the driver failed to adhere to the terms and conditions and was not extravagant, exorbitant nor unconscionable. The parking charge is not an unenforceable penalty and does not breach the Unfair Terms in Consumer Contracts Regulations 1999. • Any form of parking ticket or ‘notice’ is issued under the law ‘of trespass and Contract Law’. A driver who is invited (or chooses) to park on private land and use the car parking facilities and pays a fee/s does so under a contract (signage) with the car park operator. 

mysticalsoul786

Am I allowed to post the land contract here, I have not included the signature section. If not I will delete post. shall I measure the signage to make sure its at least 1.9 meters from ground, and also the agreement started from July 2017, and on automatic 5 year renewal, is that ok, or should ECP have provided the automatic renewal one with signatures ( the one provided has signatures dates from 2017) 

Coupon-mad

ECP have authorised ECP!

mysticalsoul786

Coupon-mad said:

ECP have authorised ECP!

Yeah, is that lawful, even the signatures, one signature is from ecp holding, and the other is ecp ltd. Land registry search shows Iceland as landowner leaseholder