Azure Parking Photographic Evidence ?

Castle

looking_forward said:

Received yesterday afternoon ,
Thanks to all on here for your help & support.

Actually, all that means is that ZZPS won't be chasing the PCN; it doesn't say that it has been cancelled.

Coupon-mad

However if this was the one that's in the middle of POPLA, ZZPS handle that stage!

kryten3000

Yes, this looks like the DCBL/DCB Legal "trick" where if you respond to a DCB Legal Letter of CLaim and send it to DCBL by mistake they tell you their file is closed when it is very much open at DCB Legal.

The POPLA appeal needs to attack the complete failure to comply with the POFA.  That should be the first point, spelling out exactly why the notice fails.

looking_forward

Ok, here you have an attempt at the appeal for Popla , I hope I am making relevant point . comments welcome

thanks  

I, the Registered Keeper of vehicle, am writing to appeal parking charge notice ----------- issued by the Operator.

1.       Signage and Visibility

The signage at the entrance to the site was inadequate. It was not prominently positioned at the entrance, but rather located on an inside wall in small print, making it not readily visible from a moving vehicle. This was exacerbated by adverse weather conditions, specifically snow at night, and the absence of sign lighting. The wording on the sign was minimal & unclear, and it was unreasonable to expect the driver to notice it, let alone enter into a contract under those conditions. Even upon retrospective viewing, the sign's information does not clearly establish a contractual agreement.

This contravenes the BPA Code of Practice. Paragraph 18.3 states:

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

“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”

The above also indicates a contravention of BPA Code of Practice (18.2), which states: “you must also have a standard form of entrance sign at the entrance to the parking area.”

The ANPR photos confirm that the alleged contravention occurred during hours of darkness and in very poor weather. There is insufficient lighting at the site and the signs cannot clearly be seen during the hours of darkness.

 

ANPR Evidence

The ANPR footage provides only minimal evidence of the vehicle's entry and exit times. This is insufficient to prove that the vehicle was parked in breach of any terms. A parking charge can only be justified if there is evidence that the driver was aware of and accepted the terms of parking. ANPR data alone does not demonstrate this. There is no evidence that the vehicle was parked in contravention of the terms, nor that the driver was adequately informed of them.

2.       Request for Evidence

To substantiate the claim, I request the following evidence:

1.       Photographs showing the location of the vehicle relative to the displayed parking terms signage.

2.       Proof that the terms of parking were clearly displayed and visible to the driver, especially at the entrance.

3.       A clear indication of which specific term of parking was allegedly breached.

4.       Any agreements or authorizations between the Operator and the landowner permitting the issuance of parking charge notices.                                                                                

3.       Legal Compliance

The Operator must demonstrate full compliance with POFA 2012 and the BPA Code of Practice, both of which mandate clear signage and sufficient evidence for parking charges to be enforceable. Absent such evidence, the charge is invalid.

4.       Contravention vs. Breach of Contract

The use of the term ‘contravention’ suggests a penalty, rather than a breach of contract. The charge's validity is questionable, as it must be founded on a breach of contract, not a mere contravention.

5.       POFA 2012 Non-Compliance

The Notice to Keeper does not contain a direct invitation to the keeper to pay the parking charge, as required by POFA 2012.

6.       Failure to Comply with Data Protection Requirements

The Operator has failed to comply with the ICO Code of Practice applicable to ANPR, including the absence of information about Subject Access Request (SAR) rights, a privacy statement, and an evaluation justifying the necessity, fairness, and proportionality of 24/7 ANPR enforcement at this site. This constitutes a serious breach of the BPA Code of Practice.

BPA Code of Practice (21.4) states:

“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 l keep to the Data Protection Act l follow the DVLA requirements concerning the data l 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 referred to are found in the ICO’s CCTV Code of Practice: https://ico.org.uk/media/for-organisations/documents/1542/cctv-code-of-practice.pdf

The ICO’s CCTV Code of Practice stipulates:

“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.”

The ICO’s CCTV Code of Practice mandates that operators using ANPR must undertake privacy impact assessments to justify its use and demonstrate its necessity and proportionality. Operators must also regularly evaluate the ongoing necessity and proportionality of its use.

Therefore, I require the Operator to provide evidence of regular privacy impact assessments, demonstrating compliance with the ICO’s CCTV Code of Practice and the BPA Code of Practice. I also require the outcomes of these assessments to demonstrate that the use of ANPR has “a lawful basis and is justified, necessary and proportionate”.

The ICO’s CCTV Code of Practice further states:

“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.”

The Operator has failed to provide a Privacy Notice on their signage explaining the keeper's right to a Subject Access Request (SAR). In fact, neither the NtK, any reminder letter, nor any rejection letter contains a Privacy Notice or any wording indicating the keeper's right to a SAR, despite the presence of a "Data Protection" heading on the reverse of the NtK. This is a mandatory requirement of the ICO’s CCTV Code of Practice (5.3 and 7.6), which is, in turn, a mandatory requirement within the BPA’s Code of Practice. This serious omission by a data processor using ANPR renders the use of this registered keeper’s data unlawful.

Given these omissions and breaches of the ICO’s CCTV Code of Practice, and consequently the BPA’s Code of Practice, which mandates full ICO compliance, POPLA cannot reasonably find that the PCN was properly issued.

7.       ANPR System Reliability and Accuracy

The Operator's NtK merely states that the vehicle “entered [xxx] at [xxx] and departed at [xxx]”, citing ANPR camera system data.

It is critical to note that the British Parking Association DOES NOT audit the ANPR systems used by parking operators, and has no means of ensuring their proper functioning or the accuracy of the data collected. Independent research has not established that this technology is generally accurate, proportionate, or reliable. This is a key reason why local authorities are prohibited from using it in their car parks.

The BPA has acknowledged this. In a January 2018 email, Steve Clark, Head of Operational Services at the BPA, stated:

"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.''

ANPR data processing and system failures are well-documented, particularly in mixed retail and residential areas like the location in question. The BPA has also warned about ANPR flaws: http://www.britishparking.co.uk/Other-Advice#4, specifically the flaw of assuming that 'drive in, drive out' events constitute parking events. They advise that reputable operators typically do not uphold charges issued in this manner.

In this case, the driver briefly stopped where there were no designated signs or bays, and not within any retail area, but at a private residence not signed as being managed by the Operator. This demonstrates an ANPR system failure, and a breach of the first data protection principle by the operator in processing flawed data.

The excessive use of ANPR, such as 24/7 blanket coverage, has been condemned by both the BPA and the ICO: http://www.britishparking.co.uk/News/excessive-use-of-anpr-cameras-for-enforcement. Such excessive use is, in fact, unlawful. ANPR systems are not audited, except by the ICO in response to public complaints.

Therefore, POPLA must not assume ANPR systems function correctly, nor expect consumers to prove the impossible regarding systems over which they have no control, and for which independent and publicly available information about inherent failings is readily available.

 

8. 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.

 

 

 

 

In light of the above points, I respectfully request that this parking charge notice be cancelled.

Yours sincerely,

Registered Keeper

 

 

Coupon-mad

That's not what @kryten3000 advised.

Or was it established that THIS PCN is fully POFA compliant?

looking_forward

The earlier charge that the NTK was sent 4 1/2 months after alleged contravention has been dropped and disappeared from pay my parking charge. 
This is the night time charge with inadequate signage.....

Coupon-mad

With a POFA NTK (except no period of parking)?

looking_forward

It has a period of parking and as far as I can tell NTK is POFA compliant.

There is no invitation to keeper to pay.

looking_forward

I am going to submit appeal as listed above , is there anything else worth including ? 

thanks 

Coupon-mad

Remove 3, 4, 6 & 7 as none of those will be considered. Focus only on what might win.