Premier Park Appeal rejected

Coni888

Hi,

Whilst on holiday, my daughter and entered a parking lot and spends around 10/15min circling the plot to find a space. Finally parked and paid via app. On return, once again we were held up by people pulling out in front of us, one lane/one way only, so had to wait.

Got home and received a PCN saying not paid for parking. I appealed and attached parking ticket. They rejected it and gave me a popla number.

Do I do a popla or wait? Thank you.

KeithP

Do a popla - as described in the third post of the NEWBIES thread.

Coni888

Would anyone be kind enough to look at the POPLA document and let me know if I need to do anything else/different as this is my first PCN. By the way, I jumped the gun and admitted to driving before I read the Newbie section - sorry. Thank you.

Appeal re POPLA Code:  v Premier Park Ltd

Vehicle Registration:

 POPLA ref:

I, the driver, received a letter dated xxx acting as a notice to the registered driver. My appeal to the operator – Premier Park Ltd – was submitted and acknowledged on 05 June 2024 but subsequently rejected by email dated 13 June 2024. I contend that I, as the driver, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1 No Evidence of Parking Time

2 Grace Period: BPA Code of Practice–non-compliance

3 The entrance signs are inadequate and signs in this car park are not prominent, clear or legible from all parking spaces.

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

5 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

6 The ANPR System is Neither Reliable nor Accurate

7 No Planning Permission from Torquay Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

1 No Evidence of Period Parked – PCN does not meet PoFA 2012 requirements

Premier Park Ltd issued the PCN incorrectyl as follows: Whole Perood of Parking not Paid For (3hrs 16min)

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;”

Preemier Park Ltd’s PCN simply claims that the vehicle “entered Marina Car Park Torquay at 11:22 and departed at 14:39”. At no stage does Premier Park Ltd explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

Premier Park 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. Premier Park Ltd, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Premier Park 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 Premier Park 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.

Contract was compliked with as a parking ticket was purchased for the duration of parking (see Apendix A).

In case of Marina Car Park Torqay the design of the carpark does not give the option to move past waiting/parking cars as the car park is a one way, one lane car park. (see Figure 1). This design will lead to longer waiting times when entering/exiting the car park. Users are requested to pay for parking as per Premier Park Ltd's signage, but does not mention to include payment from entry and exit times of the carpark itself.

2 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 (13.1) 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 (13.2) states that:

“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”

BPA’s Code of Practice (13.4) states that:

“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. 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.”

The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. 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 entering and exiting in question (16min) is not an unreasonable grace period, given:

a) The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.

b) The lengthiness of Premier Park Ltd’s signage (in terms of word count) all written in tiny text the across of the sign (see Figure 2).

All factors discussed above serve merely to increase the time taken to:

• Read the full terms and conditions

• Decipher the confusing information being presented

Coni888

3 The entrance signs are inadequate 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”

Figure 3 shows the view at the entrance/exit, around the time and with conditions, similar to those of the case under discussion. It is straightforward to conclude from Figure 1 that the 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 that there are terms and conditions they must be aware of.” 

4 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:

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

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

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

• who has the responsibility for putting up and maintaining signs

• the definition of the services provided by each party to the agreement.

5 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:-  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 Premier Park 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 Premier Park Ltd must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require Premier Park 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.”

Premier Park Ltd has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Premier Park Ltd has not stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork, reminder letter or rejection letter despite there being a Data Protection heading on the back of the PCN. 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 The ANPR System is Neither Reliable nor Accurate

Premier Park Ltd’s PCN simply claims “that the vehicle “entered Marina Car Park Torquay at 11:22 and departed at 14:39”. Premier Park 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:

''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 Premier Park Ltd) 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:

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.

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.

Coni888

7 No Planning Permission from Torbay Borough Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

A search in Torbay planning database does not show any planning permission for the pole-mounted ANPR cameras for the Marina Car Park Torquay, 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 Premier Park 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 Premier Park 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 (2024).

Coupon-mad

No planning permission isn't something POPLA look at, so remove that. In fact remove 5, 6 and 7 as none of them have any legs.

Buried in that draft I found this. Is it true?

"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 Premier Park Ltd)"

KeithP

Before even looking at your appeal text, the first thing that jumps out at me is the fact that you have posted your PoPLA code twice and your vehicle's registration mark.

That's enough information for someone who may not have your best interests at heart - like a rogue parking company stooge, to file a rubbish appeal on your behalf.

Coni888

Coupon-mad said:

No planning permission isn't something POPLA look at, so remove that. In fact remove 5, 6 and 7 as none of them have any legs.

Buried in that draft I found this. Is it true?

"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 Premier Park Ltd)"

I must have missed this when drafting it. Thank you 

Coupon-mad

Ok. Now remove all the waffly bits and those 3 paragraphs at the end, and read it all through to make sure there are no other paragraphs that make no sense. 

1505grandad

As above. -  there is mention of Smart Parking

Coni888

I got the evidence pack from premier Park. They have a rolling contract since 2019. I don't think there is anything there to comment? The pictures provided are from 2028/2019 loads of signage photos. The a statement from them on the duration of me being there. It took 13min to find a space as very busy and loads of waiting for other people to park. I am at a loss what to dispute? .