UKPC - Grace Period Query

SingleQuestionAccount6132

James_Poisson said:

SingleQuestionAccount6132 said:

There are no signs stating that the vehicle cannot be on site during a restricted time. Only that parking is restricted at certain times.

It's trespass no contract was offered.

I've got this written down along with a section on ANPR cameras and grace periods, but is this ok?

The Alleged Breach is NOT Covered by the Signage, so no Contract was Broken.

The alleged breach in the Notice to Keeper is stated as:

                “The vehicle was present on site during the restricted no parking period.”

However, the signage at the location does not prohibit being present on site. The wording is “No Unauthorised Parking” with one of the conditions being “No parking between 00:30 and 05:30”. See Figure 1.

This is a clear distinction:

• The signs only prohibit unauthorised parking.
• They do NOT prohibit vehicles from being present, driving through, or otherwise being on site.
• UKPC’s own evidence does not demonstrate that the vehicle was parked at the restricted time, only that it was on site via ANPR arrival and departure times. Irrespective of actual parking times.

Further, BPA Code of Practice, Clause 3.1.3 states:

“Signs within controlled land displaying the specific terms and conditions applying must be clear, unambiguous and not use the words “penalty” or “fine”, unless there is a statutory requirement to do so;”

The signs do not state that the vehicle cannot be present on site during restricted parking times, only that they cannot be “parked during restricted times”. Since the alleged breach does not match the terms displayed on the site, a contract was never breached, as it was never offered.

[IMAGE]

Figure 1: Shows the only sign on site during the day with all terms and conditions.

Coupon-mad

Is this POPLA stage?

SingleQuestionAccount6132

Coupon-mad said:

Is this POPLA stage?

Yes. This is for POPLA

Coupon-mad

Well there is more.

See post 3 of the NEWBIES thread.

SingleQuestionAccount6132

@Coupon-mad

Hello again, so I've written a draft. It's quite long, but if I could get your opinion on this (as well as anyone else), that would be greatly appreciated!

POPLA Appeal Draft 1:

drive.proton.me/urls/DQ0D4TDGW4#ohTP3gnDYvHm

Coupon-mad

Better to copy & paste so we can whizz through it - we regulars skim read posts!

SingleQuestionAccount6132

Coupon-mad said:

Better to copy & paste so we can whizz through it - we regulars skim read posts!

Alright. Sure. The link is just a pdf document, but ill post it here C&P.

-------------------------

POPLA Verification Code: [xxxxxxxxxxxxx]

Vehicle Registration: [xxxxxxxxxxxxx]

 

I, the registered keeper of this vehicle, received a letter dated [date] titled “Notice to Keeper” (hereinafter referred as NtK). My appeal to the operator – UK Parking Control Ltd (hereinafter referred to as UKPC) – was submitted and acknowledged by UKPC on [date] and rejected via an email dated [date]. 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)      The Alleged Breach is NOT Covered by the Signage, so no Contract was Broken.

2)      The ANPR System is Neither Reliable nor Accurate

3)      The ANPR System is NOT located near the entrance to the car park but rather the estate. BPA Code of Practice and ICO Code of Practice Non-Compliance

4)      Grace Period: BPA Code of Practice Non-Compliance

5)      No evidence of period parked – NtK does not meet PoFA 2012 requirements

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

7)      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

8)      Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

9)      No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

10) The Signs are not transparent in warning drivers of what the ANPR data will be used for.

11) No Planning Permission from [City] Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

The Alleged Breach is NOT Covered by the Signage, so no Contract was Broken.

The alleged breach in the Notice to Keeper is stated as:

                “The vehicle was present on site during the restricted no parking period.”

However, the signage at the location does not prohibit being present on site. The wording is “No Unauthorised Parking” with one of the conditions being “No parking between 00:30 and 05:30”. (See Figure 1.)

This is a clear distinction:

·         The signs only prohibit unauthorised parking.

·         They do NOT prohibit vehicles from being present, driving through, or otherwise being on site.

·         UKPC’s own evidence does not demonstrate that the vehicle was parked at the restricted time, only that it was on site via ANPR arrival and departure times.

Further, BPA Code of Practice, Clause 3.1.3(J) states:

“Signs within controlled land displaying the specific terms and conditions applying must be clear, unambiguous and not use the words “penalty” or “fine”, unless there is a statutory requirement to do so;”

The signs do not state that the vehicle cannot be present on site during restricted parking times only that they cannot be “parked during restricted times”. Since the alleged breach does not match the terms displayed on site, a contract was never breached as it was never offered in the terms.

[image]

Figure 1: Shows the only sign on site during the day with all terms and conditions.

Figure 1 clearly shows the signs do not meet the BPA Code of Practice, as in addition to the mismatch of alleged breach vs signage, the sign also fails to comply with BPA Code of Practice, Section 3.2, which requires:

“Signs informing drivers that a parking charge may be applicable and of the level of that charge must do so in a font of comparable size and boldness to the main body text on the sign, and where included on signs also displaying the parking tariff a font no smaller than the tariff text/numbers.”

The signage at this sign fails to meet this standard. While the parking charge is mentioned, it is buried within a block of small, non-bold text in the middle of the sign. It is not displayed in a font size or style comparable to the main body of text (“NO UNAUTHORISED PARKING”), which dominates the sign.

This means that the level of the parking charge is not prominent, clear, or legible to the average driver. The BPA CoP explicitly requires prominence and comparability in font size and boldness. By relegating this critical contractual term to smaller, less visible text, the operator has failed to communicate the charge transparently, which further breaches Consumer Rights Act sections 62 and 68. Which state that:

Section 62: A consumer notice must be fair, and a term is unfair if it creates a significant imbalance to the detriment of the consumer

Section 68: Terms must be transparent, expressed in plain and intelligible language, and prominent, meaning brought to the consumer’s attention in such a way that the average driver would be aware of them.

In this case, the £100 parking charge is not displayed prominently or transparently. Instead, it is buried in small print, failing the test of fairness and transparency. A driver cannot reasonably be expected to have consented to such a term when it is not presented clearly at the point of entry or within the key information of the signage.

The fact that this is the only sign present across the parking lot reinforces the point that no contract was offered that any reasonable driver would have agreed to. Hiding important information, such as the £100 charge, in fine print is a breach of the Consumer Rights Act and BPA practices and opens up UKPC for legal suits for predatory practices. 

The ANPR System is Neither Reliable nor Accurate

The UKPC Notice to Keeper (NtK) fails to establish any period of actual parking, but merely two images of a number plate corresponding with that of the vehicle in question, with no connection demonstrated whatsoever with the car park in question.

The Notice to Keeper states:

“The vehicle was recorded on our client’s private property at [location] from [date and time] to [date and time]. The vehicle was present on site during the restricted no parking period”

These times do not equate to any single evidenced period of parking. By UKPCs own admission on their NtK, these times are claimed to be the arrival and departure times from the site of the vehicle. There is no evidence of a single period of parking, and this cannot reasonably be assumed.

Since there is no evidence to actual parking times this fails the requirements of Protection of Freedoms Act 2012, Schedule 4, Paragraph 9(2)(a), which states;

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

ANPR cameras cannot differentiate between a vehicle entering/leaving, waiting, or parking. The alleged breach is therefore unsupported by any valid evidence.
Further, the BPA Code of Practice, Paragraph 7.1, states:

“Parking operators must ensure that the equipment and systems used to capture photographic evidence in respect of controlled land are fit for purpose, maintained to a good standard in accordance with the manufacturers’ operating requirements and those of the ATA to which the operator belongs, and are synchronised so that they record accurately photographic evidence of whether a parking charge is due.”

Please Note: 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 evidence of this, here are multiple statements by the British Parking Association aimed at stopping POPLA falling into error about assumed audits:

Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim regarding this repeated misinformation about BPA 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 also conceded that the Assessor's comments may have been a misrepresentation of Clause 7.1 formally 21.3 of the BPA Code which says:

“Parking operators must ensure that the equipment and systems used to capture photographic evidence in respect of controlled land are fit for purpose, maintained to a good standard in accordance with the manufacturers’ operating requirements and those of the ATA to which the operator belongs, and are synchronised so that they record accurately photographic evidence of whether a parking charge is due.

NOTE: Information about the design, security and maintenance of equipment and systems should be recorded and maintained for inspection by authorised bodies.''

Furthermore, due to the flaws in data processing and/or system failure being well known, it is certainly inappropriate in a mixed retail area, such as the location in question. A quote from BPA’s own website states:

“As with all new technology, there are issues associated with its use” With this, 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”.

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.

In this case, as the driver drove in and around the property where there are no signs stating “No Trespassing” or “Time Restricted Area” the ANPR system has 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:

[link to britishparking news]

Following this, I require UKPC Ltd to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images and show that the system has not failed visitors to the retail park.

The ANPR System is NOT located near the entrance to the car park but rather the estate. BPA Code of Practice and ICO Code of Practice Non-Compliance

The ANPR cameras are located at the entrance to the wider [location] estate, rather than the actual entrance to the car park itself. As a result, the ANPR cameras are capturing all vehicles entering the estate, regardless of whether they subsequently enter or use the managed car park. See Figure 2.

Figure 2: Shows a map of the estate, taken from planning applications, with ANPR camera locations, site entrance, and car park entrance added in.

BPA Code of Practice 3.1.1 that states:

“An entrance sign must be displayed and maintained at the entrance to controlled land”

By placing ANPR cameras at the estate entrance, UKPC are not measuring entry/exit to the car park (the “controlled land”), but instead to the wider business estate, which fails the transparency and fairness requirements under the BPA Code of Practice section 7:

“Parking operators may use camera technology to remotely manage parking on controlled land as long as they do so overtly, and in a reasonable, consistent and transparent manner.”

The BPA Code of Practice states what classifies as “controlled land” under section 1:

“This Code of Practice (“the Code”) specifies requirements for the operation and management of private parking by companies engaged in managing activities on two categories of controlled land:

• Open to the Public – this is land where there is an open invitation for any member of the public to park their vehicle, subject to terms and conditions. This will include free parking areas, where there is a limit on the length of time a vehicle may be parked and areas where parking may be made for a fee. It should be noted that even on such car parks there will be terms and conditions which must be complied with for example, parking within a bay, correctly inputting the vehicle’s registration number, making the correct payment (this list is not exhaustive). There are also likely to be areas within the car park where parking is not permitted.

• Restricted areas – This is all other areas of controlled land. This includes no parking areas, roads or areas where there is an invitation for certain people to park their vehicle such as customers of a particular shop, residents or those displaying a permit or Blue Badge (this list is not exhaustive).”

[location] is an “Open to the Public” site, as the car park is free for up to 4 hours for any member of the public, subject to T&Cs. Therefore, UKPC must only monitor the car park itself, not the entire retail estate

Furthermore, UKPC have breached UK GDPR Article 5 and ICO guidelines by placing these cameras at the entrance to the estate. Under Article 5:

·         (1)(c) Data Minimisation - Data must be limited to what is necessary. Cameras at the estate entrance inevitably capture vehicles that never enter the UKPC-managed car park, which is excessive data collection.

·         (1)(b) Purpose Limitations - Data must only be collected for the stated purpose. If the signs say the purpose is “car park management and enforcement,” then capturing all estate traffic exceeds that purpose.

This shows that even on private land, it is not lawful or proportionate to capture data about every vehicle entering, if many of those vehicles never enter the managed car park, which undermines the accuracy of any evidence, since the parking operator cannot prove that the vehicle was ever parked in the managed car park solely based on ANPR estate entry/exit times.

Therefore, I request UKPC to show strict proof that the vehicle was parked on controlled land for the period of time they allege. ANPR entry/exit times from cameras positioned at the estate entrance are not accurate evidence of parking, as they only record vehicles entering and leaving the wider site, not the controlled car park as the BPA Code of Practice mandates.

SingleQuestionAccount6132

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. For the sake of this appeal, I’ll only state those that apply.

Clause 5.2 (Grace Period) states that:

“A grace period as set out at Annex B to this Code must be allowed by the parking operator in addition to the parking period. A parking charge must not be issued during a Grace Period.”

Annex A 1.1

“Signs at the entrance to a parking area must clearly show the type of parking available and if, when and how any payment is required to be made. If public parking is not welcomed, that must be made clear. If public parking is welcomed, but subject to a tariff, then the existence of the tariff must be made clear.”

Annex B states that:

“The minimum consideration and grace periods listed in Table B.1 must be applied by parking operators.”

Following this, the BPA Code of Practice (Table B.1) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. This applies in this case; it is reasonable to suggest that the minimum of 10 minutes grace period stipulated is also a “reasonable grace period” to apply to 5.1 and 5.2 of the BPA’s Code of Practice.

The car park in question hosts 445 parking spaces (see source below) and therefore falls into the minimum consideration period (mins) of 5 minutes and Grace Period (mins) 10 as stated by BPA’s Table B.1 Controlled Land.

(Source: [redacted])

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.”

Finally, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 5.2 of the BPA Code of Practice to read ‘a minimum of eleven minutes’:

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads:

“Reword Clause 5.2 to ‘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 11 minutes.”

(Source: [redacted])

As stated earlier in this section, 5.2 does apply in this case (as we were with the car 4 minutes after the restricted parking time initiated). It is therefore argued that the duration the vehicle was parked falls within the ‘minimum 10 minute’ Grace Period, given:

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

b)     Visibility was hindered further as the site was in darkness at time of the visit – 23:52

c)      The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice A.1.1) and the impact of that upon time taken to locate signage prior to entering into a contract.

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

And

e)      UKPC allege the vehicle was “on site” for 57 minutes and 21 seconds (23:51:56 to 00:49:17)

f)        Exhibit A and Exhibit B (time-stamped dashcam footage) shows the vehicle was only parked between 23:52 and 00:34 (42 minutes). This is a large discrepancy.

g)      The driver returned to the vehicle at 00:34:06, i.e. 4 minutes after the restricted period began. This turns the vehicle from a PARKED state to a STOPPED state by BPA’s Code of Practice 2.19.b and 2.35

h)      A further amount of time was spent driving around the site before leaving.

The BPA’s Code of Practice requires a minimum grace period at both ends. When this is applied:

·         The short overstay after 00:30 is well within the mandatory 10-11 minute departure grace period under Clause 5.2

·         The initial arrival time is also covered since the restriction only starts at 00:30.

UKPC’s ANPR timestamps do not reflect a true “period of parking.” The BPA Code of Practice is clear that enforcement must only be applied to actual parking events.

No Evidence of Period Parked – NtK does not meet PoFA 2012 Requirements

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus stopped or moving.

Furthermore, 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.”

UKPC’s NtK simply claims “The vehicle was on site at [location]”

The NtK separately states that the vehicle “Arrived at 23:51:56 and departed at 00:49:17”. At no stage do UKPC explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

UKPC’s NtK states:

“ANPR and Warden Patrol services are in operation for the purposes of Car Park Management and enforcement, data reporting and analyzing consumer behavior and crime prevention”.

This confirms that ANPR is being used for general site monitoring, not for recording a defined period of parking as required by PoFA 2012 Schedule 4, and as such, keeper liability cannot be established. Only the driver could ever be liable, and the appellant has not been identified as the driver.

By virtue of the nature of an ANPR system recording only entry and exit times, UKPC are not able to definitively state the period of parking. I require UKPC 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.

SingleQuestionAccount6132

There are no entrance signs and signs in this car park are not prominent, clear or legible from all parking spaces

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, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

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:

Figure 3: Twitter post by the UK Supreme Court.

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.

Figure 4: Beavis Sign

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, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. 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.

Figure 5: A sign present in the car park during dusk.

The image in figure 5 shows a picture taken from the car parking space under a sign with the terms and conditions written on taken  in the same lighting conditions as the PCN. The sign is 2.8m above the ground and 0.8m tall.  This is the sign for which the PCN has been issued. This was taken at head height to showcase the difficulty of reading this sign during nighttime. This shows clear evidence that:

·         The sign is positioned high on a pole, making it difficult to read.

·         The terms are made even harder to read due to the size of the font and lack of light.

·         The sign relies on the streetlights for legibility. However, the text is too small to be legible even in the day from a passing car or by a stationary car.

This clearly shows that UKPC signage does not comply with BPA code of practice A.3.2, specifically:

“Signs must always be readable and understandable, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.”

The section in red text at the bottom of the sign (see Figure 5) that is apparently a “Data Protection Information” and “Your Rights” section is in tiny text that is impossible to read without a step ladder, particularly in the dark when you would also need a torch. It cannot be ignored – the wording used clearly states it is important and therefore urges the reader to fully read and understand. Why is something so important so small and illegible? Additionally, there are no entrance signs for the car park or the site itself, which violates BPA’s Code of Practice 3.1.1 that states:

“An entrance sign must be displayed and maintained at the entrance to controlled land to inform drivers as appropriate whether parking is permitted subject to terms and conditions, including payment, or is prohibited, unless:

a)      The nature of the premises makes this unnecessary such that drivers would not reasonably assume parking was permissible; or

b)     Where not practicable e.g. where local planning restrictions prohibit such signs.”

This site does not fit either condition for an entrance sign to be void. Therefore, by failing to display entrance signs, UKPC breaches Clause 3.1.1 of the BPA’s Code of Practice.

Figure 6: Entrance to the car park taken from Dashcam. Dated.

Further research shows confirmed that the signs in the car park contain a substantial amount of text. This text is very small – impossible to read whilst in a moving vehicle – and difficult to read in daylight whist on foot (let alone from a moving vehicle after dark).

Further, the signs are not compliant in terms of wording/format, more positioning and illumination. Specifically, I will discuss two factors that are key in establishing non-compliance with the BPA CoP section 3; the height of the sign; the luminosity of the signs.

Figure 7: Height of relevant sign inside the car park. Closest to where the driver parked.

As explained in Figure 7 above, the measurement from the ground to the bottom of the relevant sign is 280cm-290cm. This measurement from the ground to the top of the sign is 360cm-370cm. This sign is placed high enough off the ground that it would require two people standing on each other to reach the sign. 290cm is approximately 9.5ft.

The height of the sign with added reflectivity due to the glossiness of the sign with headlights and the small text for the terms and conditions makes this sign nearly impossible to read without a step ladder. It cannot be expected that a person that parks near this sign could see it due to the height being almost double that of the average UK person.

Figure 5 was taken in the same lighting conditions as per the occasion for which the PCN has been issued. This provides clear evidence as to the lack of legible or even visible signage from where the vehicle was situated. It is therefore suggested once again that Figures 5, 6 and 7 serve to reinforce the earlier point regarding non-compliance with the BPA Code of Practice (A.3.2), specifically:

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

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the PoFA 2012 Schedule 4 and the BPA Code of Practice, the signs in the [location] car park do not clearly mention the parking charge which is hidden in small print. Large areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put UKPC to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

[link to firefox font sizer page]

As further evidence that this is inadequate notice, Letter Height Visibility is

discussed here:

[link to signage for outdoor use]

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

[link to letter visibility chart]

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, 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':

A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

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:

[link to law 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.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat (not stock examples of 'the sign' in isolation/close-up), in the same lighting conditions. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

In addition, the BPA Code of Practice (18.1) clearly states that:

“Where byelaws apply in respect of parking on controlled land the parking operator must make clear whether they are enforcing the byelaw, through the appropriate legal procedure for their enforcement, or pursuing a complementary contractual obligation.”

Bearing this paragraph in mind, there was categorically no contract established between the driver and UKPC. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated.

Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was impossible to read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that there was no initial entrance sign in the car park and signs present are poorly located (too high, on the passenger side of the vehicle, not visible from drivers side), invisible after dark (not lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle entering the car park), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.

SingleQuestionAccount6132

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 breac

Due to the nature of ANPR cameras, UKPC must be registered with the Information Commissioner’s Office (ICO). This registration is also made mandatory by BPA’s Code of Practice Annex H, which states:

“It is important that the Sanction Scheme is used primarily as a mechanism to encourage compliance and correct non-conformances, and only be punitive where the parking operator fails to correct substantiated non-conformance or where the non-conformance was so serious that sanctions are appropriate.”

One of these non-conformances is:

“Failure to register with the Information Commissioner”

and

“Misuse of Keeper Data”

Being registered with the ICO requires UKPC to ensure they follow the guidelines of the ICO in regard to their data collection and use through CCTV and ANPR cameras.

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 Data Protection Act 218. 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 organizations 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.”

These quotations are taken directly from the ICO’s CCTV Code of Practice and state that if UKPC 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 UKPC must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require UKPC 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:

1)      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.”

UKPC has not stated a Privacy notice or any wording suggesting that keepers right to a subject access request (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.

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

The BPA Code of Practice point 7.3 stipulates that:

"Photographic evidence must not be used by a parking operator as the basis for issuing a parking charge unless:

a)      at least one of the images captured includes a clear record of the vehicle’s VRM to which the parking charge is deemed to apply;

b)     the images bear an accurate time and date stamp;

c)      the image(s) show, where appropriate, the pay and display tariff receipt as displayed or not being visible; and

d)     images generated by ANPR or CCTV have been subject to manual quality control check, including the accuracy of the timestamp and the risk of keying errors.”

BPA Code of Practice 7.4 states:

“Parking operators must not digitally or by other means alter images used as photographic evidence other than:

a)      to blur faces or the VRMs of other vehicles in the image in accordance with their GDPR obligations; or

b)     to engance the image of the VRM for clarity, but not to alter the letters and numbers displayed.

The PCN in question contains two close-up images of the vehicle number plate. While they do contain a date and time stamp “on the photograph” they do not clearly identify the vehicle entering or leaving a car park (which is also not identifiable in the photos as of any particular location at all due to how dark it is). (See figure 8).

As these are not the original images, I require Euro Car Parks Limited to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

[image | Black with only headlights and numberplate visible with timestamp]

Figure 8: Photo’s provided in the NtK by UKPC