Euro Car Parks - POPLA rejection

_superhans

Hi all,

I have followed the incredibly helpful advice of this forum in challenging an invoice from Euro Car Parks. The template appeal to ECP was of course rejected, and the POPLA appeal has now also been rejected. The landowner, Hargreaves, have also been unhelpful and disappointingly, they seem to support ECP's actions.

Both ECP and Hargreaves have failed to answer subject access requests and this has been reported to the ICO. ECP will not fulfil it until I provide government-issued photo ID (which I won't) and Hargreaves ignored it. The SAR to Hargreaves was on the basis that I believe their contract with ECP, which ECP provided part of as part of their POPLA evidence pack, means that keeper data will need be shared with Hargreaves in order for them to sign off on legal action, etc.

I have also complained to my MP, whose staff have contacted ECP and Hargreaves asking for their comments on the case. This has been met with a standard template response from ECP, and Hargreaves ignored it. It remains to be seen if anything further will come of the complaint.

I wondered if anyone could offer their view on whether you would have expected this appeal to succeed - I did think there were some 'winning' points in there that I have seen from previous POPLA wins on the forum. The assessor doesn't seem to have fully considered most of my points and there are a number of obvious mistakes in their reply. Would it be worth complaining to POPLA or the BPA or should I just go into 'ignore mode' now, keeping ECP aware of any address changes, and only taking notice of a claim form?

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Background:

Essentially, this was a retail car park where at 10pm, the time limit reduces from 2.5 hours to 15 minutes, until 6am the next morning.

Conveniently, the signs are not illuminated and are mounted high up, so they are easily missed during the period when the time limit is reduced. Most of the text is not legible at all in darkness.

Unknown to me, my car was parked there during the time the limit is reduced, and it was there for just over 40 minutes.

My POPLA appeal:

Supporting images:

_superhans

Appeal re POPLA Code **** (Euro Car Parks Ltd) Vehicle Registration: ****

I, the registered keeper of this vehicle, received a letter dated 7th August 2024, acting as a notice to the registered keeper. My appeal to the operator – Euro Car Parks Ltd – was submitted and acknowledged on 17th August 2024 but subsequently rejected by an email dated 2nd September 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) The signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, they are unlit which makes them illegible in darkness, such as at the time of the alleged contravention.

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 PoFA 2012 requirements.

6) Vehicle images contained in PCN are non-compliant with the BPA Code of Practice and POFA 2012.

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 Havant Borough 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. These should be in addition to any period of ‘free’ parking that is offered at the site.

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”

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:

a) The failure to light signage so as to make signs visible from all parking spaces, and legible once located. The site is not well lit and furthermore, the installed parking signage does not have its own lighting. This makes it illegible after nightfall, which is when the alleged contravention occurred. A motorist would have to walk around the large site for a significant amount of time in order to find a sign that is readable, if one exists at all (see figure 1).

b) 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 (see figure 1).

c) The lengthiness of Euro Car Parks Ltd’s signage (in terms of word count), which is all written in a very small font (see figure 2).

All factors discussed above serve 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
• Make a decision as to whether to park
• Decide not to park and therefore not enter into a contract
• Safely leave the car park

2) The signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, they are unlit which makes them illegible in darkness, such as at the time of the alleged contravention.

The PCN alleges that the contravention occurred at 10:03pm on 1st August 2024. At that time, the car park in question was in darkness.

As the car park is poorly lit (see figure 1) and the signage relating to parking terms is not lit at all (see figure 1), and is illegible from ground level even in daylight, it was not possible for the driver to have entered into any supposed ‘contract’ that Euro Car Parks Ltd claim these signs represent.

The BPA code of practice (CoP) states:

“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.”

Given figure 1, POPLA must agree that the signage does not meet this requirement and therefore breaches the BPA’s CoP.

Section 19.2 of the BPA code of practice 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. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £100, which is illegible from the driver’s view at the site entrance, and is not visible from all parking spaces, and which gives no prior notice that there are parking restrictions - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist. There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, not saved by the dissimilar 'ParkingEye Ltd v Beavis' case, 2015.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, similar in appearance to un-related parking signage, not immediately obvious as parking terms and the wording is mostly illegible, being crowded, presented in an incredibly small font, and using colours which make the text difficult to read. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no signs with the full terms displayed - i.e. with the sum of the parking charge itself in large lettering, and the full terms displayed on a single sign, - neither at the entrance nor elsewhere, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

I put the operator to strict proof as to the size and font of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself, and to prove the location and number of signs required to be read to fully read the full terms of parking.

The signage is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ
106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

_superhans

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

Furthermore, Euro Car Parks Ltd have identified themselves as the 'creditor' in the Notice to Keeper I received. However, the signage clearly states that Euro Car Parks Ltd merely ‘manage’ the car park on the landowner’s behalf.

A disclosed principal means that the contract is with the landowner, 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 Ltd 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 landowner.

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 than 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 keeper’s 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 keeper’s 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.

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 whilst 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 lists: ‘Time in Car Park’, ‘Entry Time’ and ‘Exit Time’. 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 only claiming entry 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 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 Euro Car Parks 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, Euro Car Parks 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.

6) Vehicle images contained in PCN are non-compliant with the BPA Code of Practice and POFA 2012.

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. There is distorted, illegible text stamped on these images. If these are time and date stamps, these are not sufficient such as to be compliant with this requirement of the BPA CoP. In addition, the images do not show a vehicle, only an inserted image of the license plates. Any vehicle passing by the nearby roundabout 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 (see figure 3).

Please review the copy of the NTK provided, and I am sure you will be satisfied that the images of the vehicle number plate on the NTK are non-compliant with Section 21.5a of the BPA Code of Practice.

Please be warned that I believe that Euro Car Parks, having read this document, are likely to submit digitally altered photos as ‘evidence’ to show the entry and exit times. These cannot be relied upon and do not change the non-compliant status of the NtK.

A recent investigation (27 Apr 2018) by the BBC concluded that the private parking industry is effectively unregulated and does not have any accountability. Various cases show that 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 original images as evidence, but to put 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 valid evidence, audited by a qualified third party, to prove that its process is not biased to suit its financial objective.

_superhans

7) The ANPR system is neither reliable nor accurate.

Euro Car Parks Ltd’s NtK simply claims that the vehicle “entered at 22:03:19 and departed at 22:45:36”. 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 have no legible date or time stamps.

In terms of the technology of the ANPR cameras themselves, POPLA, please take note and disregard 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 their 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' - 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 it is certainly
an inappropriate system in a busy retail 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 stopped where there are no signs, 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.

Excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO, and only when complaints are made.

POPLA cannot use the 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.

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 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.

There is no information indicating 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 Havant Borough Council for pole-mounted ANPR cameras and no advertising consent for signage.

A search in Havant Borough Council’s planning database does not show any planning permission for the pole-mounted ANPR cameras for the site, 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 and 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 that 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.

 

10) Notice to Keeper wording not POFA 2012 compliant.

The Notice to Keeper (NtK) shown from Euro Car Parks Ltd (see figure 3) uses 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..."

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.

Given the above points, Euro Car Parks Ltd cannot transfer liability for this ‘parking charge’ to the registered keeper of the vehicle.

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.

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 many more details that would make it a legally valid document.

Given all of the points raised, I request that you cancel this ‘parking charge notice’.

Yours sincerely,
****

_superhans

POPLA RESPONSE:

Decision

Unsuccessful

Assessor Name

Rebecca Appleton

Assessor summary of operator case

The parking operator has issued the parking charge notice (PCN) as your vehicle has overstayed the maximum time. 

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal. • The appellant is appealing as the Registered Keeper of the vehicle. • The operator has failed to comply with the British Parking Association code of practice, and references grace periods. • The appellant says the signage within the car park are neither clear or legible and they are unlit which makes them illegible in darkness. • The operator has failed to provide evidence that they had the landowners authority. • The operator has failed to comply with the ICO code of practice as the signage fails to reference any information applicable to ANPR. • No evidence has been provided of the period in with the vehicle was parked. • The images on the PCN are non complaint with the BPA code of practice and POFA 2012. The images have no visible time stamps. • The ANPR system is not reliable or accurate. • No planning permission has been given. • The notice to keeper fails to comply with the Protection of Freedoms Act 2012. After reviewing the operator’s evidence, the appellant expands on their grounds of appeal. The appellant has provided 1. Photo of the signage in the hours of darkness. 2. Photo of the sign during daylight hours. 3. Copy of the PCN. 4. Copy of the images taken from the PCN. The above evidence has been considered in making my determination.

Assessor supporting rational for decision

The appellant is appealing as the Registered Keeper of the vehicle. They say the notice to keeper fails to comply with the Protection of Freedoms Act 2012. The say the images on the PCN are non complaint with the BPA code of practice and POFA 2012. The images have no visible time stamps. The appellant is appealing as the registered keeper of the vehicle and the driver has not been identified. If the driver has not been identified the keeper can be held liable, providing the requirements of Schedule 4 of The Protection of Freedoms Act 2012 (POFA) have been met along with the requirements set out in the British Parking Association code of practice which specifically relates to the notice to keeper. Upon review of the Parking Charge Notice I am satisfied the notice complies with the requirements set out in the Protection of Freedoms Act and the requirements set out within the British Parking Association. In this case I am satsiifed the operator can hold the appellant liable as the registered keeper. When assessing an appeal POPLA considers if the operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. Signage on site states that there is a maximum stay of 15 minutes between the hours of 22:00 – 05:59. The driver remained on site between the hours of 22:00 and 05:59 for a period of 45 minutes, exceeding the 15 minute maximum stay by 30 minutes. The appellant says the signage within the car park are neither clear or legible and they are unlit which makes them illegible in darkness. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 19.2 of the BPA code of practice 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. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use” Having reviewed appendix B also, this refers to entrance signs and when there may be impractical reasons to display them, such as, when the car park is very small. Having reviewed the signage within the case file, I am satisfied that the signs have met the requirements of section 19.2. this is because the operator has shown that there is an entrance sign displayed on the right hand side of the car park, which the driver had the opportunity to see on entry to the car park. This sign advised them to read the further terms and conditions within the car park. Therefore, it was down to the driver to read the further terms and conditions within the car park itself. Paragraph 19.3 states: “signage tells drivers what your terms and conditions are, including the parking charges. You must place signage containing the specific parking terms throughout the site so that drivers are given the chance to read them at the time of parking or leaving.” Paragraph 19.3 also explains that signs “must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand.” Appendix B of the British Parking Association Code of Practice explains that, “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when the 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 in 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 similar to that used on public roads and described in the Traffic Signs Manual”. On this point I have looked at the evidence and note the alleged contravention did take place after dark and this is confirmed in the automatic number plate recognition (ANPR) images provided. Both the operator and the appellant have provided photos of the site. Upon review of the photos I am satisfied it is clear that there are lighting poles on site. It is clear form the images that the signage can be seen during the hours of darkness and therefore complies with Appendix B of the code of practice. While I note that the appellant states that they were unaware of the terms and conditions, the driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Reviewing the photographic evidence of the signage on display at the site, I am satisfied that the driver was afforded this opportunity. The appellant says the ANPR system is not reliable or accurate. The site in questions operates Automatic Number Plate Recognition (ANPR) cameras. ANPR cameras capture vehicles entering and exiting the car park to calculate the time a vehicle has remained onsite. When considering these appeals, POPLA must first consider if there is sufficient evidence to cast doubt on the accuracy of the ANPR system. The evidence can be provided from both the appellant and the operator. The operator provides evidence of the images, supporting its version of events. The appellant would then provide evidence or a version of events casting doubt on the validity of the ANPR technology. Our role is to then judge if the evidence is adequate enough to show the technology was not working on the date in question. In this case, whilst I recognise the appellant’s comments, they have not provided enough sufficient evidence as to why they feel the cameras are not reliable in this specific case. I am therefore satisfied the evidence provided by the operator is sufficient and the ANPR is reliable. The appellant says the operator has failed to comply with the ICO code of practice as the signage fails to reference any information applicable to ANPR. Section 22.1 of the BPA code of practice states “You may use camera technology to remotely manage parking on controlled land as long as you do so overtly, and in a reasonable, consistent and transparent manner. In particular you must make sure the data you are collecting is accurate, securely held and cannot be tampered with.” Upon review of the signage I can see it states that the operator is using ANPR and/or handled cameras to capture images of vehicle number plates to monitor and enforce the terms. In this case I am satisfied the signage complies with the relevant section of the BPA code of practice. If the appellant would like to continue to dispute this ground they can do so however it is outside of our remit. The appellant would need to contact the ICO to further dispute this. The appellant says no evidence has been provided of the period in with the vehicle was parked. Whilst I do not dispute the appellants ground there is no requirement to show at what point the vehicle parked on site. The car park is monitored by ANPR, the entrance and exit is monitored by ANPR. It is reasonable to assume once a driver entered the site the terms and conditions would apply to them from that point. The appellant says the operator has failed to comply with the British Parking Association code of practice, and references grace periods. The British Parking Association (BPA) Code of Practice, paragraph 13.1 states: “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”. This site offers a consideration period of 5 minutes, which is double the requirement of the BPA and I consider is reasonable for the size of the site. By remaining at the site after the consideration period, the appellant accepted the terms and conditions of the site and also the possible consequences of breaching any of these. When parking at a site, it is the motorist’s responsibility to ensure that they are complying with the terms and conditions. In regard to grace periods, The British Parking Association (BPA) Code of Practice, paragraph 13.3 states: “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 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”. A grace period is looked at only if there is a breach of 10 minutes on site. In this case the total amount of time spent on site was 42 minutes, resulting in a breach of the grace period by 17 minutes. It is also important to reference Section 13.6 of the BPA Code of Practice, “Neither a consideration period or a grace period are periods of free parking and there is no requirement for you to offer an additional allowance on top of a consideration or grace period”. I note that the appellant has commented on the evidence provided by the operator and also states they have failed to comply with GDPR; when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. As this issue holds no impact on the appellant’s ability to comply with the terms on the date of the parking event, I cannot consider it relevant to the assessment. Should the appellant wish to pursue any dispute regarding this matter, they would need to contact the operator directly. Having review both the appellants grounds of appeal and the comments raised, I conclude that the terms and conditions of the car park have not been met and the operator has issued the PCN correctly, as such the appeal is refused.

 

Coupon-mad

No that POPLA appeal had no chance.  There is nothing there that could have won. I would not have bothered!

Just wait for the DCB Legal court claim and then (if you follow our advice to the letter) they will end up discontinuing and their whole pack of cards will collapse. It's that easy.

_superhans

Fair enough, I’ll sit back and wait!

For the future reference of anyone else caught out at this site by ECP, are there any POPLA appeal points which come to mind that could have been successful in this case? In hindsight, I should have posted it here for scrutiny..

Many thanks.

Coupon-mad

No.

You didn't miss a trick IMHO, just wasted effort! Even that photo of the sign is fairly readable, albeit I can't tell if that pic was taken in daylight or darkness.

If I were you I'd get some more photos asap in the pitch black, taken without a flash and showing the entrance sign (hopefully that offers a headline '2.5 hours free' which would be useful as court evidence).

_superhans

Thanks. That’s a good shout, will get some more photos shortly.

I hadn’t considered the content of the entrance sign - as shown below from street view, they don’t mention a time limit, and they aren’t illuminated at night either - the roundabout sign behind it is, but they couldn’t manage to light the parking sign too, funny that.

The first photo of the site I attached was at night, and the close up photo of the sign was in broad daylight. My phone did remarkably well to take that night shot - I’ll try to disable whatever low light trickery it’s using before taking some more.

I should also have mentioned, ECP provided photos of the signage at night in their POPLA response, which I commented on, as they very clearly took them using a flash or some kind of external lighting, as you can see the reflection on the metal pole. But alas, of no interest to POPLA.

Thanks for the help and I’ll update this if I end up defending a claim.