UKPC - Grace Period Query

Coupon-mad

SingleQuestionAccount6132 said:

The Signs are not transparent in warning 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.

BPA Code of Practice Paragraph 7 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. UKPC’ 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 UKPC’s sign in the [LOCATION] car park (see Figure 5) states:

“Automatic Number Plate Recognition (ANPR) and Warden Patrol Services are in operation for the purposes of Car Park Management and enforcement, Data Reporting and analysing consumer behaviour and crime prevention.

For these purposes your personal data including vehicle registrations and your movements within the car park site may be processed by UK Parking Control Ltd to enable performance of the parking contract and/or to protect legitimate interests as follows:

Provide to Police or security organisations in order to prevent or detect criminal offences

We may also store data about your vehicle with organisations that analyse consumer, drive and vehicle behaviour in this car park.”

The wording on the sign does not explicitly tell drivers that ANPR images will be used to issue Parking Charge Notices (PCNs). Instead, it hides this crucial fact behind vague terms such as “management” and “enforcement.”

Under the BPA Code of Practice (Section 7), signage must clearly convey the specific uses of ANPR cameras so that motorists understand what data is being collected and for what purpose. If the real commercial outcome of “enforcement” is the issuing of PCNs (which is UKPC’s primary enforcement activity), then the signs should state this plainly. The only reference to Parking Charge Notices on UKPC’ sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states (see Figure 5):

“This land is private property and parking control is managed by UK Parking Control Ltd. Failure to comply with the following at any time will result in a £100 Parking Charge (reduced to £60 is paid within 14 days) being issued to the vehicle’s driver.”

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) 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.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

(1)   A Trader must ensure that a written term of a consumer contract, or 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.

And 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 or crime) 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’:

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6. – (1) “A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2) –

(a)   The commercial practice omits material information,

(b)   The commercial practice hides material information,

(c)   The commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d)   The commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.”

It is far from ‘apparent’ that the use of ANPR cameras will 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. UKPC’s sign is to vague as the word “enforcement” could be misinterpreted by their further uses of “Crime” and  “Police and security organisations”. This is not transparent enough to be covered under the Consumer Rights Act. By failing to do so, the operator has:

·         Misrepresented the purpose of data collection, making the notice non-compliant with BPA rules.

·         Breached transparency requirements under UK GDPR, which require that personal data is processed in a clear and specific way that data subjects (drivers) can understand.

·         Denied drivers informed consent about the contractual consequences of entering the site, since it is not made clear that ANPR cameras are being used to issue parking charge notices.

Therefore, the signage is misleading and fails both under the BPA Code of Practice and data protection law, making any Parking Charge Notice issued on the basis of this evidence invalid.

Remove that point above, completely, as it is old and it doesn't find favour with POPLA.

Replace it with a point saying that the sign term was a prohibition, not a contractual offer. The signage does not offer an invitation to park on certain terms. The terms are forbidding. POPLA must consider whether a contract was on offer, and it cannot have been, if parking is prohibited. The required basic elements of contract law are not met: no consideration (nothing of value) has been offered to the driver.

Now, I recall a POPLA appeal won on that exact basis in the past year but to find it, you'd have to skim read every one, going back many dozens of pages from the end first (recent posts first). I could not find it with a search!

And don't use the (IMHO horrible, jarring) Americanism 'parking lot' which doesn't exist in England!

Oh and I think your Dashcam point & evidence of only being parked until 4 mins into thd 'prohibited' time should be made first. Right at the start as a stand single point because it's buried at the moment.

SingleQuestionAccount6132

Coupon-mad said:

Replace it with a point saying that the sign term was a prohibition, not a contractual offer. The signage does not offer an invitation to park on certain terms. The terms are forbidding. POPLA must consider whether a contract was on offer, and it cannot have been, if parking is prohibited. The required basic elements of contract law are not met: no consideration (nothing of value) has been offered to the driver.

Oh and I think your Dashcam point & evidence of only being parked until 4 mins into thd 'prohibited' time should be made first. Right at the start as a stand single point because it's buried at the moment.

Done,

The '4 minutes into the grace period' has been placed at the top of that section rather than further down as the first thing you see when you get to that section.

The vehicle was parked 4 minutes into the restricted period of parking (shown by dashcam footage). This falls under the grace period set out by BPA Code of Practice, which requires two grace periods: one at the start of parking and one at the end.

Furthermore, I've added a short section titled 'No Contractual Offer - Signage is Forbidding, Not an Invitation to Park:

No Contractual Offer - Signage is Forbidding, Not an Invitation to Park

The signage at this site does not make any genuine contractual offer to park. Instead, the terms are forbidding in nature, stating what is not permitted rather than inviting drivers to park on certain terms. Such wording cannot form the basis of a legally binding contract.

For a contract to be formed under Contract law, there must be:

•  An offer,
•  Acceptance, and
• Consideration (something of value exchanged).

Here, no consideration is offered to the driver. The signage seeks to prohibit parking during 00:30 and 05:30, which is not a contractual offer but rather a unilateral prohibition. A driver cannot accept a “contract” that does not exist, and no payment or benefit is being offered in return for compliance.

This position is supported by case law:

• UKPC v Masterson: The court held that a prohibitive sign is incapable of forming a contract. The only possible cause of action would be trespass, which only the landowner – not a parking operator – has standing to pursue.
• PCM (UK) v Bull: The judge similarly ruled that where signage is forbidding in nature, no contract can be established. Instead, it amounts at most to a matter of trespass, which again only the landowner may enforce.

Accordingly, POPLA must find that no contract was capable of being formed in this case. The signage is prohibitive in nature, meaning any alleged contravention could only amount to trespass. Only the landowner has the legal standing to pursue matters of trespass, not UKPC. Therefore, UKPC has no lawful basis to enforce this charge.

Coupon-mad

Yes put it in ... then do the Public Consultation if you haven't already.

SingleQuestionAccount6132

Coupon-mad said:

Yes put it in ... then do the Public Consultation if you haven't already.

I haven't. How would I go about doing this?

Also, Would this be the completion of the popla appeal? Just wait a little longer and then send it in.

Coupon-mad

SingleQuestionAccount6132 said:

Coupon-mad said:

Yes put it in ... then do the Public Consultation if you haven't already.

I haven't. How would I go about doing this?

I was hoping all posters would have hopefully seen the thread of guidance that's been current on page one or two, since July.

Instead I am having to post this on every thread - I don't know how so many posters are missing this thread:

https://forums.moneysavingexpert.com/discussion/6617396/parking-code-of-practice-consultation-now-extended-closes-friday-26th-september/p1

We understand that you may need some pointers, so you can call out a scam industry and you'll protect millions of motorists and help change the law. 

I've written some guidance to help focus new posters on the issues. I've covered almost every question, providing ideas if you agree with our stance on things like DRFs, which we say must be banned.

Ordinary people like you are falling victim to this scam 15 million times per annum. Motorists need your voice added please.

CLOSES ON FRIDAY 26th SEPTEMBER.