Popla appeal euro car parks

3. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be
used for

The rejection of the first appeal states ‘The car park is operated by Automatic Number Plate Recognition (ANPR). Cameras capture an image of vehicles entering and leaving the car park and calculate their length of stay on site.’

However, the signs on site at the time of parking 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 21.1 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’ signs do not comply with these requirements because the 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 in the Browncross street car park (see Figure 1) states:

“We are using cameras to capture images of vehicle number plates and
calculate the length of stay between entry and exit 24 hours a day Monday to Sunday including bank holidays.”

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 only reference to Parking Charge
Notices on 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 (see Figure 1):

“This car park is patrolled, failure to comply with the following 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 (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 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.

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) 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':

xxx.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 a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.




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

As this operator does not have proprietary interest in the land then 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP 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 l andowner (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




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 versus attempting to read the terms
and conditions before deciding against parking/entering into a contract.

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;”

Euro Car Parks’ NtK simply claims “the vehicle was parked at Browncross street – Manchester, Browncross street Salford, Manchester, M60 9HP.”

The NtK separately states that the vehicle “entered Browncross street – Manchester at 12:22:26 and departed at 18:35:41”. At no stage do Euro Car Parks explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

Euro Car Parks NtK states “we are using cameras to capture images of vehicles
entering and leaving the car park to calculate their length of stay”. It is not in the
gift of Euro Car Parks 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 are not able to definitively state the period of parking.

I require Euro Car Parks 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: BPA Code of Practice – non-compliance

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. 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 parking charge notice in question contains two photographs of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The time and date stamp has been inserted into the letter underneath (but not part of) the photographs (see photo below). The images have also been cropped to only display the number plate. 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.


Photo: This is an image of the NtK with non-compliant photographic evidence



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

As of the end of January 2019, there is only one record of Planning Permission or Advertising Consent having been applied for in the Salford City Council on line planning database for car parking signage on the site of Browncross street. There were no records concerning pole-mounted ANPR cameras.

The only car park signage applications listed for this site which showed up on the search:

xxx://publicaccess.salford.gov.uk/publicaccess/applicationDetails.do?keyVal=9736492ADV&activeTab=summary
Ref: 97/36492/ADV, Display of non illuminated car park sign, West Riverside Carpark, Junction Of Browncross Street/ Quay Street Salford 3. Application received Mon 14 April 1997

As there is more than one private car parking company operating on Browncross street along with council parking it is unclear which entity this planning application concerns. The solitary application also talks in the singular rather than for multiple signs, and identifies only one location, which is a distance from where the driver parked, as illustrated in the photograph below.


Photo: red cross = location of Browncross Street/ Quay Street junction. Green cross = location of site, poles and signs under discussion.

UK government guidance on advertisement signage requires:

xxx.gov.uk/guidance/advertisements
“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.”

The lack of planning permission indicated by the search and the doubt thrown upon legality of the poles and signs implies that all Euro Car Parks Limited pole mounted signage, cameras and signage of 0.3m² and greater on the 06/12/18 may be illegal.

The BPA Code of Practice - Para 2.4 states:

“Paragraph 2.4 When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses. Examples of relevant law and guidance within this sector are:

• contract law
• tort of trespass
• data protection law
• consumer protection law
• Protection of Freedoms Act 2012 (PoFA), including Schedule 4 (included as Appendix C to the Code)
• DVLA Guidelines for Accredited Trade Associations
• equalities law.”

This proves that Euro Car Parks Limited are/have been seeking to enforce Terms and Conditions displayed on illegally erected signage, using equipment (pole-
mounted ANPR cameras) for which no planning application had been made.

I request Euro Car Parks provide 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 0.3m², prior to
the date to which this appeal relates (06/12/18).

Coupon-mad wrote: »

Why not just say at that point, a little vaguely: 'the driver found that none of the methods of payment was working' and that you put them to strict proof otherwise? Don't mention the phone option separately...make them prove something was working!

I don't mean remove your wording about trying to pay, keep that in, but don't admit to failing to try paying by phone.

I think I may have said something in the first appeal concerning how the driver had security concerns about phone payment which is why I worded this appeal as it is. Should I still do as you suggest despite that?

I think I sufficiently changed it. I’ll update when there’s news. I think landowner authority or signage is the way I’d win if I do so anyway. Without question the signage doesn’t comply with requirements.