Britannia Parking - Appeal Rejected

IamDan · 3 August 2018 at 11:00AM

My partner received a Parking Charge Notice, Notice To Keeper on the 6th July after parking at Britannia Parking car park on the 29th June.

The driver paid for a parking ticket, however when using the Pay by Phone app they incorrectly selected the wrong parking location that appeared. The driver has a copy of the ticket which was paid for on that date from Pay by Phones online system.

Following receipt of the PCN my partner replied with the template on the Newbies Thread on the 9/7/2018.

On 30th July my partner received a letter from Britannia Parking rejecting the appeal and providing a POPLA verification code. The letter outlines the 3 options available and they are still offering a the discounted rate of £60 for a further 14 days.
Mr partner really begrudges paying the fine as the driver on the day has made a human error and selected the wrong parking location.

I was wondering if anyone could potentially provide some guidance on what to do next, due to the error is it best to pay the fine or make a further appeal to the POPLA?
The letter is dated the 30th July and I believe it states that you have 28 days to submit an appeal to POPLA.

Any help would be greatly appreciated.

Thanks

Fruitcake · 3 August 2018 at 11:12AM

It is not a fine.
Why on earth would anybody want to pay a scammer? There is no suggestion of paying the scammers on this site.

If you have read the NEWBIES, then you would know that you should now construct a PoPLA appeal and post it here for checking before submitting it. Use ALL the template points from post 3 of the NEWBIES that are relevant.

PoPLA codes generally last 32 days, but that is cutting it fine. Do not miss the deadline.

What happened when you/your partner complained to the landowner/retail manager?

Please complain to your/your partner's MP about this unregulated scam.

IamDan · 6 August 2018 at 9:55AM

Hi Fruitcake,

Thanks for the reply.

This is the POPLA appeal I have put together using the templates. Any suggested amendments would be greatly appreciated.

Thanks

Appeal re POPLA code: XXXXX, XXXXX v Britannia Parking Group Ltd

Dear POPLA Adjudicator,

I am writing to you to lodge a formal appeal against a parking charge notice issued by Britannia Parking (parking charge number XXXXX).

I contend I am not liable for this parking charge on the basis of the below points:

1) Failure to comply with the data protection

2) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

3) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

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

1) Failure to comply with the data protection

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 Code of Practice (21.4) 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!!!8217;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!!!8217;s Office that the BPA Code of Practice (21.4) refers to is the CCTV Code of Practice found at:

The ICO!!!8217;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 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 schemes impact on peoples privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a !!!8216;Conducting privacy impact assessments code of practice!!!8217; 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!!!8217;s CCTV Code of Practice state that if NCP 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 NCP must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require NCP to provide proof of regular privacy
impact assessments in order to comply with the ICO!!!8217;s CCTV Code of Practice and BPA!!!8217;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!!!8217;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 codes requirements in practice. You should:

!!!8216;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!!!8217;s right of subject access."

NCP has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, NCP has not stated a Privacy Notice or any wording even suggesting the keepers 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!!!8217;s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the BPA!!!8217;s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keepers data unlawful.

As such, given the omissions and breaches of the ICO!!!8217;s CCTV Code of Practice, and
in turn the BPA!!!8217;s Code of Practice that requires full ICO compliance as a matter of law.

2) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from the owner, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor), (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further, if a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.

It is my understanding that for an 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 Protection of Freedoms Act (PoFA) 2012 must be adhered to. The Driver of the vehicle has not been identified and the Notice to Keeper fails to comply with section 9 of PoFA 2012 (no windscreen ticket was issued), specifically the following passage:

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, (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.

The Notice to Keeper that was received (Parking Charge Number 6576904) omits such information.

Please be advised that the driver of the motor vehicle is required to pay the parking charge in full. As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and current postal address of the driver and pass this notice to them for payment.

Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9).

As this operator has evidently failed to serve a compliant NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly elaborated.

3) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

The signs were contradictory and crowded with different terms, so this is not an example of !!!8216;plain intelligible language!!!8217;, contrary to the Consumer Rights Act 2015:

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.
It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park.

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, 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.

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 full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, 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 on 2.6.16, 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.

For this appeal, I put the operator 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. 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. 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.

5) 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 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 CoP) 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).

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 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

Umkomaas · 6 August 2018 at 10:13AM

1) Failure to comply with the data protection

Demote that to your final appeal point, thereby all other appeal points moving up the batting order. POPLA does not adjudicate on DPA issues (but you leave the point in as the PPC then has to deal with it in their submission).

You get your killer point (No Keeper Liability) in first so POPLA can quickly deal with this and uphold your appeal (subject to you not having previously identified the driver to the PPC).

The_Deep · 6 August 2018 at 10:34AM

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

IamDan · 31 August 2018 at 4:46PM

Good Afternoon,

I recently sent the above POPLA Appeal and they have sent me an email yesterday with all the documentation from Britannia Parking asking for me to make further comments.

Is this required after sending the appeal letter?

Also as previously mentioned the Driver did pay for a ticket on the day but unfortunately they selected the incorrect parking number on the 'Pay by Phone' App.

Hopefully someone can help with the next step.

Thanks

Quentin · 31 August 2018 at 6:01PM

Yes - demolish all their comments if you can!

Coupon-mad · 31 August 2018 at 6:08PM

Yes this is normal, as per all the other POPLA threads you care to read.

IamDan · 1 September 2018 at 1:27PM

Hi again, I have just been looking at all the evidence they have put on the file and they have photos of signs/ vehicle/ landowner agreement/ machine data etc.

The POPLA email was sent on the 29/08/2018 and therefore keen to get my comments on but really do know where to start. Some comments I have seen in the initial rejection of the appeal from Britannia Parkis is that they have 'assumed the identity of the driver' and 'ANPR camera technology is not relevant in this case as PCN was issued by patrolled site car park attendant.'

In their evidence statement they do state 'This car park uses Automatic Number Plate Recognition (ANPR). The car park is not manned'

I apologise for the questions but wondering where to start.

Thank you in advance

waamo · 1 September 2018 at 1:45PM

Well if they are guessing who the driver is challenge it. The driver has not been identified and they are not relying on keeper liability.

The contradictory statement about ANPR is laughable and I hope challenging that is self explanatory.

Is there evidence the photos are contemporaneous? If not point out they could be from years ago.

Quentin · 1 September 2018 at 1:45PM

Those 2 examples you give are clearly ideal fodder for you to demolish!

Britannia Parking - Appeal Rejected

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