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  • FIRST POST
    • ohhdeeear
    • By ohhdeeear 17th Oct 18, 2:39 PM
    • 25Posts
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    ohhdeeear
    NCP final notice for overstaying
    • #1
    • 17th Oct 18, 2:39 PM
    NCP final notice for overstaying 17th Oct 18 at 2:39 PM
    Received a final notice or rather Keeper Liability Notice from NCP for parking in one of their carparks. Didn't receive the first notice as recently moved and it presumably went to old address. However, received final notice as this was redirected. This notice says there is no appeal and fine is £100, threatening debt recovery and court etc - so have 14 days to pay up etc.

    At the time of parking the driver was unaware of newly installed ANPR because apparently the carpark had been recently taken over by NCP even though their distinctive orange notices hadn’t yet been installed. Upon going back recently the driver has seen that notices now changed to NCP ones. But the driver only saw old notices from previous operator so no mention of ANPR and didn't spot or notice any wording about paying £100 fine for overstaying.

    Apparently the driver overstayed by 20 minutes even though had paid £1 for an hour - the only option is to pay in hourly increments so even if you go over by 10 minutes you are expected to pay for an extra hour. According to phone record, the driver paid by phone for the first hour and then made 2 attempts to phone to extend before the hour was up, but whether that meant it was successfully paid up for a 2nd hour, we don't know.

    So not sure what to do now as not received first notice so cannot supposedly appeal. Could pay (£100 for not paying £1 apparently) or write to NCP saying didn't receive first notice or some sort of defence to get them to restart process at new address? Could write to retail park owners/managers asking them to cancel as the driver was buying in several stores.

    What is best course of action? Thank you for any suggestions!
    Last edited by ohhdeeear; 19-10-2018 at 1:52 PM.
Page 2
    • The Deep
    • By The Deep 20th Nov 18, 9:17 AM
    • 12,438 Posts
    • 12,577 Thanks
    The Deep
    complain to your MP.

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

    Parking Eye, CPM, Smart, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. It has even been suggested that some of these companies have links with organised crime.

    Watch the video of the Second Reading and committee stage in the House of Commons recently. MPs have a very low opinion of this industry.

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

    https://hansard.parliament.uk/commons/2018-07-19/debates/2b90805c-bff8-4707-8bdc-b0bfae5a7ad5/Parking(CodeOfPractice)Bill(FirstSitting)

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by in the not too distant future..
    You never know how far you can go until you go too far.
    • ohhdeeear
    • By ohhdeeear 23rd Nov 18, 2:40 PM
    • 25 Posts
    • 7 Thanks
    ohhdeeear
    Sorry for not replying sooner, but thanks for your replies so far. Appeal sent in so wait to see if code forthcoming and then if I have the time and energy to keep fighting this stupid business which is a ridiculous waste of customers' time.
    • ohhdeeear
    • By ohhdeeear 9th Jan 19, 4:34 PM
    • 25 Posts
    • 7 Thanks
    ohhdeeear
    Hi anyone, who can advise me on next stage now please. So have POPLA code and have until next Monday to submit appeal (they say only 28 days to use).

    Have results of SAR, requesting all correspondence - DVLA lookups, any emails between NCP and the retail centre which might be identified (although possibly not. Centre managers passed on my query of PCN to NCP without my permission but driver or keeper's identity wasn’t revealed in query), images of signage at material time (not all old signage had been replaced so anyone infrequent visitors would be unaware NCP new managers or ANPR newly installed), any updates/ case notes.

    SAR in the end provided:
    - images of car entering and leaving with time codes;
    - NtK sent to wrong address (so not received by keeper at time and past 14 days - but has it still been served even if to wrong address?);
    - Keeper liability notice again to wrong address (so not received by keeper at time);
    - letter from occupant at old address stating desist from sending NCP letters to wrong address, giving new address and requesting old address data erased;
    - NCP reply to old address, addressed to me (presuming I was still at old address(?) and had sent previous letter about incorrect address) saying that was address they got from DVLA database;
    - email from NCP employee ‘xxx’ to DPO, subject line just PCN number, only saying "could you please withdraw..." (whatever that means - presumably to do with updating address and sending out new notice??) and DPO's reply, "All closed for you" (???);
    - PCN to Driver sent to new address, presuming me to be the driver (even though driver never been nominated), saying NtK had already been served.
    - copy of my appeal letter as keeper - disputing any driver nomination and that as never received NtK, it hadn’t been served, so demanding POPLA code;
    - just one date of imported keeper details from DVLA;
    - my SAR letter.

    But no images of signage either contemporary or from material time, and no email exchanges between operator and retail centre, so driver/keeper wasn’t identified(?). They inferred they had checked DVLA for keeper details more than once but only one date given in SAR.

    In replying to my initial appeal (as keeper in response to their belated/incorrect PCN to Driver) they gave their standard response and provided no evidence. So not surprisingly, despite my request, they did not provide documentation showing any alleged driver nomination, no explanation of PCN offence, no images/evidence to prove period car actually parked for, no images of signage either contemporaneous or from time in question, no record of payments, no mention of grace periods or policy with landowner (to cancel charge for genuine customers/first time offenders).

    Have read through arguments and POPLA templates on MSE and presume can try most of usual arguments such as:

    1) No keeper liability- PoFA non-compliant NTK due to failure to adhere to strict wording and guidelines set out in PoFA – no mention of PoFA at all in NTK and not received within 14 days (sent to wrong address).
    Not sure if can use this one strongly as they sent NtK and Keeper Liability Notice to previous address so didn’t receive in time - but hasn't NtK still technically been served, even if to wrong address? Also not sure if wording on these notices are PoFA compliant? Can upload notices to check wording. Plus is PCN to Driver too late and invalid as sent 68 or 69 days after incident and to keeper, assuming keeper is driver without the driver ever being nominated?

    2) 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.
    Well wrongly sent ‘PCN to driver’ to keeper and provided no evidence of driver being nominated.

    3) Grace Period: BPA Code of Practice–non-compliance.
    Not sure can use this as according to time codes, driver overstayed by 31 minutes so more than 2 x 10mins grace. Although they paid by phone for 1 hour and phoned to pay for another hour with 10 mins to go, (there’s phone evidence), but not sure both payments registered as NCP hasn’t provided payment records even though requested.

    4. There are no easily visible entrance signs for the regular entry and 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.
    There are online complaints about the inconsistent and slow change over of signage since NCP took over, with misleading signage still present from old contractor at time of incident. The driver was used to old system, and being infrequent visitor didn’t realise NCP had taken over or that ANPR had been installed as only saw old signage at machine near where parked and didn’t not notice any yellow NCP signage at entrance. Obviously don’t have photos of old signs as driver unaware car would be ANPRed. NCP has not provided evidence of signage from material time, so no certain proof that non-misleading signage had been universally installed from outset. Have images of current NCP signage at parking spot - £100 charge not clearly legible - and driver can see this does not match old signage/machine still in place at time of incident.

    5. No evidence of period parked – NTK does not meet PoFA 2012 requirements.

    6. No evidence of land owner authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

    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) The ANPR System is neither reliable nor accurate.

    10) The signs fail to transparently warn drivers of what the ANPR Data will be used for.

    11) No planning permission (probably - need to check) from council for pole-mounted ANPR cameras and no advertising consent for signage.

    Will that be enough or any I've missed? Possibly no contract entered as driver only saw old signage and presumed old operator (i.e. not NCP)?

    Pix taken (will try to upload again) a few weeks after time of incident but these show different signs/machine to what was in place when driver parked at same spot on top floor, less used by drivers in general (old signage was blue/grey and had paybyphone facility used by driver to pay, but isn’t available here on this updated machine or even advertised). Carpark has been undergoing various changes over a year or more during which changes have been introduced gradually so some of the old machines were still in place. Looks like when I went to check signs, that a temporary page was inserted in machine to cover up old system’s instructions before eventually new permanent sign is provided(?). Will check if machine has been updated again since. Even at this temporary stage, system didn't provide paybyphone available before - so shows signage was different. Surely hard for NCP to prove signage consistently the same over this period of changeover and that some old ones weren't still there? The driver didn’t see any clear notice about ANPR while there. Even in pix of signs updated after incident, they either don’t mention £100 charge or it's too small to see. The signs at entrance now, driver didn’t see/wasn't aware of at time when parking - would've have been hard to miss new yellow signs if they were there.
    Will try to upload pix.
    • Fruitcake
    • By Fruitcake 9th Jan 19, 4:48 PM
    • 39,141 Posts
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    Fruitcake
    OK, there is a lot of info there for us to take in.

    A few comments to start with.

    1) NTK needs to reach the serviceable address of keeper by day 14 where ANPR is used. This is the address the DVLA have on file.
    In your case it doesn't matter if the keeper has moved. If it didn't reach the address the DVLA have on file by day 14 (the date of the alleged event being day zero) where ANPR is used, it is too late to meet the very strict requirements of the POFA 2012, so liability cannot be transferred to The Keeper.

    2) Where the identity of the driver has never been given it cannot be assumed to be anyone else.

    3) Not applicable

    4) Far too short. Use the long Inadequate signage point from post 3 of the NEWBIES. If you have images of old signs that help you and hinder them, then use them. Signs with different wording, different meaning, damaged, hidden, tiny unreadable font etcetera all need to be shown. Embed all images into your pdf appeal rather than links or an appendix. That way the assessor has to look at them.




    To post images, upload them to a web hosting site such as tinypic, postimage, dropbox etcetera then paste the URL here but change http to hxxp. Someone will change it back to a live link.

    Redact personal information, don't use a ral name for the host site account, don't have any personal images in the same account. Believe me, it has happened.
    Last edited by Fruitcake; 09-01-2019 at 4:57 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 10th Jan 19, 1:02 AM
    • 68,624 Posts
    • 80,891 Thanks
    Coupon-mad
    NTK needs to reach the serviceable address of keeper by day 14 where ANPR is used. This is the address the DVLA have on file.
    In your case it doesn't matter if the keeper has moved. If it didn't reach the address the DVLA have on file by day 14 (the date of the alleged event being day zero) where ANPR is used, it is too late to meet the very strict requirements of the POFA 2012, so liability cannot be transferred to The Keeper.
    That's your first POPLA appeal point, ''no keeper liability'' and why.

    Show us your draft. Like all other POPLA appeals you care to read, it will be LONG!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • ohhdeeear
    • By ohhdeeear 13th Jan 19, 11:33 PM
    • 25 Posts
    • 7 Thanks
    ohhdeeear
    Thanks for replies.
    We don't have pix of old signs at time of incident - driver didn't know there was new operator, new ANPR system or that a PCN would be posted so no idea needed to take pix. But here are pix of signage taken a couple of weeks after incident on the top floor at same machine spot driver used. They're not the same signs the driver saw, who saw ones used during previous system (blue/grey and with pay by phone info available - which isn't an option on newer signs seen here).
    [IMG]hxxp://i65.tinypic.com/2guccau.jpg[/IMG]
    [IMG]hxxp://i65.tinypic.com/qsthg2.jpg[/IMG]
    This is one at entrance currently which would be difficult to read on way in or spot info if any on £100 charge or ANPR - not seen by driver few weeks earlier when unaware NCP had taken over
    [IMG]hxxp://i65.tinypic.com/2hyxcm8.jpg[/IMG]
    This is one taken by another driver recently, but not one I or the driver concerned have seen and somewhere else on another floor /area the driver did not use.
    [IMG]hxxp://i68.tinypic.com/2mx4dc9.jpg[/IMG]

    Fruitcake - understood about point 4 -after the point "There are no easily visible entrance signs for the regular entry ......insufficient notice of the sum of the parking charge itself.." it's meant to be my musings or notes in blue.

    Coupon Mad, I'm not sure I can use no.1 as no keeper liability as DVLA still had my old address as registered address before new one was updated, so if served means posting to address DVLA had at the time of look up.

    Will draft all the main points and post up tomorrow (have to submit by Tuesday although presumably have a couple of extra days if as has been said on this site that it's 31 or 32 days for code, not 28 days as operator states in rejection letter).

    Is it worth posting the NtK etc to check for not complying with PoFA 2012 or whatever?
    Thanks
    • Coupon-mad
    • By Coupon-mad 14th Jan 19, 12:51 AM
    • 68,624 Posts
    • 80,891 Thanks
    Coupon-mad
    Will draft all the main points and post up tomorrow (have to submit by Tuesday although presumably have a couple of extra days if as has been said on this site that it's 31 or 32 days for code, not 28 days as operator states in rejection letter).
    It will work until day 32 up until midnight at least.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Le_Kirk
    • By Le_Kirk 14th Jan 19, 10:21 AM
    • 4,348 Posts
    • 3,496 Thanks
    Le_Kirk
    Your links (checked) and made live: -
    http://i65.tinypic.com/2guccau.jpg
    http://i65.tinypic.com/qsthg2.jpg
    http://i65.tinypic.com/2hyxcm8.jpg
    http://i68.tinypic.com/2mx4dc9.jpg
    • ohhdeeear
    • By ohhdeeear 14th Jan 19, 7:02 PM
    • 25 Posts
    • 7 Thanks
    ohhdeeear
    Thanks for making signage pix live.

    I'm adding pix of notices -
    NtK sent to old address (only seen from SAR)
    [IMG]hxxp://i65.tinypic.com/53l8cg.jpg[/IMG]
    [IMG]hxxp://i67.tinypic.com/2por0br.jpg[/IMG]

    Keeper Liability Notice sent to old address (only seen due to SAR)
    [IMG]hxxp://i65.tinypic.com/17pr28.jpg[/IMG]
    [IMG]hxxp://i63.tinypic.com/5y9gno.jpg[/IMG]

    PCN to Driver - sent to correct address after being informed by occupant at old address
    [IMG]hxxp://i67.tinypic.com/5ff18l.jpg[/IMG]
    [IMG]hxxp://i65.tinypic.com/2a75thd.jpg[/IMG]

    Thanks
    • ohhdeeear
    • By ohhdeeear 15th Jan 19, 4:10 PM
    • 25 Posts
    • 7 Thanks
    ohhdeeear
    I’m uploading my POPLA appeal below - unfortunately I didn’t have enough time to finish and upload yesterday, so hopefully someone on the forum has some spare time to have a quick look through today (as I have to submit by end of today) to see if I’ve included the main points and in right order of priority.

    Points I wanted to check mainly:
    a)Should I try the POFA non compliance point and put it first? - mainly due to strict wording required on NTK which NCP failed, but also trying the argument that NTK not served in time due to sent to old service address which was being updated after a move (shakier argument but perhaps worth a try).

    b)Should I prioritise Breach of contract due to poor signage + inadequate signage + land owner authority above POFA non compliance?

    c)Also should I even bother with Genuine Customer point with it being NCP? It’s usually something worth doing with retailers like Tesco. Driver has card records showing several transactions.

    d)Also does ‘Beavis not applicable to paid-for parking’ apply in this case?
    As pointed out somewhere - the ParkingEye Vs Beavis case has meant that parking companies can charge amounts that do not represent loss, and instead are penalties. However, the Beavis case was based on the facts of that particular case – an overstay in a free car park.In the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguished it by reasoning that in Beavis the charge was justifable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £1); anything above that is clearly a penalty. So in a POPLA appeal would it be worth using this to differentiate the case from Beavis?

    Also the judges in the Beavis case upheld the decision for ParkingEye based on a certain set of circumstances. A good example is where the signs in the Beavis case clearly and boldly stated there would be a charge of £85 payable for breach. The judges used this in their logic to uphold the case for ParkingEye – i.e. the charge was highlighted and therefore the motorist should know the consequence for overstaying. So, if in your case the signage does not state the charge in large letters, then the same logic cannot apply.

    Another aspect of the Beavis case that can be used is that the judges ruled the charges to be legitimate to control parking, when they would otherwise be penalties. As such, if in another case the parking operator does not have a legitimate interest in controlling parking, the charge would be an unenforcable penalty - one example of charges being arguably therefore penalties is underpaying in a car park where by paying the vehicle is fully entitled to be there.

    e)Presumably don’t bother with Grace Periods argument as overstay was 31 minutes, even though driver can prove according to phone records that parking paid by phone after entry time, and also phoned pay by parking a second time when parking about to expire - making two attempts to phone - but NCP, despite request in first appeal, failed to provide payment records to confirm whether second payment for 2nd hour accepted by system or not.

    Thanks.
    • Coupon-mad
    • By Coupon-mad 15th Jan 19, 4:14 PM
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    Coupon-mad
    Yes to all of the above! And yes, don't bother with Grace periods as a point.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • ohhdeeear
    • By ohhdeeear 15th Jan 19, 4:26 PM
    • 25 Posts
    • 7 Thanks
    ohhdeeear
    Appeal re POPLA Code: xxxxxx v National Car Parks Limited
    Vehicle Registration: xxxx
    NCP PCN: xxxx
    POPLA code: xxxxx

    I, the registered keeper of this vehicle, received a letter dated xx/11/2018 acting as a notice to the driver, incorrectly assuming the keeper and driver to be the same despite NCP being unable to provide evidence that a driver has been nominated. As keeper I am not legally obliged to nominate a driver and have not done so. My appeal to the operator National Car Parks Limited was submitted and acknowledged on 04/12/2018 but subsequently rejected by a letter attachment to an email dated xx/12/2018.
    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) No keeper liability - PoFA non-compliant NTK due to failure to adhere to strict
    wording and guidelines set out in PoFA – no mention of PoFA at all in NTK.

    2) 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.

    3) No standing or authority to neither pursue charges nor form contracts with drivers
    and Breach of Contract due to poor signage

    4) There are no easily visible entrance signs for the regular entry and 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.

    6) 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 ANPR enforcement at this site is justified, fair and proportionate).
    A serious BPA CoP breach.

    7) No evidence of period parked – NTK does not meet PoFA 2012 requirements.

    8)??Grace Period: BPA Code of Practice–non-compliance. (See point e) made above in prev post)

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

    10) The ANPR System is neither reliable nor accurate.

    11) The signs fail to transparently warn drivers of what the ANPR Data will be used for.

    12) No planning permission from xxxxx Council for pole-mounted ANPR
    cameras and no advertising consent for signage.

    Please note: Additional larger copies of photographic evidence are provided at the back of
    this document for reference, as well as embedded within the document where relevant.
    Photo images of non-compliant NTK issued also attached at end of document.

    1)No keeper liability - PoFA non-compliant NTK due to failure to adhere to
    strict wording and guidelines set out in PoFA – no mention of PoFA at all in
    NTK.
    Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to
    recover any unpaid parking charges from the keeper of a vehicle if certain conditions must
    be met as stated in paragraphs 5, 6, 11, and 12. National Car Parks Limited have failed to
    fulfil the conditions which state that an operator must have provided the keeper with a
    Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a
    set timeline and wording:

    Paragraph 9 (2)(f) states:
    “The notice must-
    (f) 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 NTK is not compliant with the specific wording and information which must be
    provided to the keeper as per PoFA Schedule 4 paragraph 9. The issued NTK does not give
    warning to me as the keeper that National Car Parks have a right to recover costs from
    myself as keeper.

    Please see copy of NTK for full wording, however in summary the NTK states:
    • The driver of the above vehicle is liable
    • Additional charges may be recovered from the liable party
    There is no warning to the keeper that:
    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;

    In addition notice must be given by:

    (a) handing it to the keeper, or leaving it at a current address for service for the
    keeper, within the relevant period; or
    (b) sending it by post to a current address for service for the keeper so that it is
    delivered to that address within the relevant period.

    The applicable section here is (b) because the Parking Charge Notice/NTK that I have
    received was delivered by post.

    Furthermore, paragraph 9(5) states:

    The relevant period for the purposes of sub-paragraph (4) is the period of 14 days
    beginning with the day after that on which the specified period of parking ended.

    The Parking Charge Notice sent to myself as Registered Keeper was sent to a previous address in the process of being updated to a new current address for DVLA records. Therefore the notice was not sent to myself or received by myself within the 14 days period. The notice produced in NCP’s offices showed a purported date of issue on day 11 after the event (day 0 being day of event). However, the notice in fact arrived at the previous service address on day 16, following a weekend on a Monday, which is 2 days over the required limit, and was subsequently returned to sender by the occupant from that previous address, who also wrote to NCP to provide the Keeper’s correct address, explaining the service address was out of date as the Keeper had already moved. A Subject Access Request on 11/12/2018 shows that NCP subsequently confirmed with the DVLA that the Keeper’s new service address had already been updated since NCP first imported the Keeper’s details on 12/09/2018. This means that National Car Parks Limited has failed ensure the notice is sufficiently posted within time and therefore received/delivered within the 14 day relevant
    Period.

    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.

    So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was, which brings me to point #2:

    2)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. However, I am exercising my right not to name the driver.

    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.''
    • Coupon-mad
    • By Coupon-mad 15th Jan 19, 4:29 PM
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    Coupon-mad
    As long as you get rid of all the grating ''I'' followed by a comma and then a strangled isolated verb, split infinitives!

    It's my bugbear that people KEEP copying that grammatical aberration!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • ohhdeeear
    • By ohhdeeear 15th Jan 19, 4:52 PM
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    ohhdeeear
    Thanks Coupon Mad. Not sure where the I, bugbear bit you're referring to is, as copying and pasting large swathes of text as I go along - but will check.

    Some more of POPLA appeal being uploaded - some points/grounds where standard for everyone (and not specific or different for my case) and to make it quick, I won't bother uploading all - if that makes sense!)
    • Coupon-mad
    • By Coupon-mad 15th Jan 19, 4:56 PM
    • 68,624 Posts
    • 80,891 Thanks
    Coupon-mad
    It's in the unnecessary intro...twice...eeek!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • ohhdeeear
    • By ohhdeeear 15th Jan 19, 7:54 PM
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    • 7 Thanks
    ohhdeeear
    Section 3 about signage has been fiddly one. Doubt pix embedded in text will be saved here.

    3. There are no easily visible entrance signs for the regular entry and 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.

    BPA’s Code of Practice (18.2) states:

    “Entrance signs play an important part in establishing a parking contract and
    deterring trespassers. Therefore, as well as the signs you must have telling
    drivers about the terms and conditions for parking, you must also have a
    standard form of entrance sign at the entrance to the parking area. Entrance
    signs must tell drivers that the car park is managed and that there are terms and
    conditions they must be aware of.”

    BPA’s Code of Practice (18.3) states:

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

    BPA’s Code of Practice (Appendix B) states:

    “If you think there are other circumstances where it is impractical or undesirable
    to have an entrance sign, you must tell us in advance and get our approval to
    amend the sign or not have one.”

    “Signs should be readable and understandable at all times, including during
    the hours of darkness or at dusk if and when parking enforcement activity takes
    place at those times. This can be achieved in a variety of ways such as by direct
    lighting or by using the lighting for the parking area. If the sign itself is not directly
    or indirectly lit, we suggest that it should be made of a retro-reflective material”

    I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that
    needs to be provided to make a motorist aware of the parking charge. Specifically, it
    requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines
    'adequate notice' as follows:

    ''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by:
    (a) the display of one or more notices in accordance with any applicable
    requirements prescribed in regulations under paragraph 12 for, or for purposes
    including, the purposes of sub-paragraph (2); or
    (b) where no such requirements apply, the display of one or more notices which: (i)
    specify the sum as the charge for unauthorised parking; and (ii) are adequate to
    bring the charge to the notice of drivers who park vehicles on the relevant land''.

    Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable
    standard to use when making my own assessment, as appellant, of the signage in place at
    the location following the incident (01/09/2018) having taken images of signage on 18/09/2018 and then again a month later in October 2018.

    This standard also applies to the old blue/grey signage (certainly not yellow) and old parking machines still in situ at the parking machine location on the top storey close to where the driver parked at the material time of the incident on 01/09/2018 (more similar to Legion style signage in Fig 1.1). As a witness statement (Fig 1.7) below demonstrates - the Spires car park has been undergoing various changes throughout 2018 since NCP took over as new operators. This has caused considerable chaos for shoppers using the car park as hundreds have been caught out due to poor and inconsistent signage, failing to indicate that changes to parking arrangements including a new charge and introduction of ANPR had taken place with the takeover by new parking operators to the site, NCP. This has resulted in hundreds of complaints to The Spires management about NCP practices. Changes have been introduced gradually throughout 2018 with not all old signage being replaced with new NCP signage simultaneously throughout all floors and signage locations of the multi-storey car park. Old signage was still present on the top floor on 01/09/2018 at the time of the incident and the driver had no reason to be aware of a new parking arrangement with a new operator and new charges or that ANPR had been introduced, due to the poor and inconsistent signage during the gradual change over. Despite a request at the first appeal by the Keeper for images of all signage and machines including on the top floor at the material time day of the incident, NCP has failed to provide any evidence that all old signage everywhere in the car park had indeed been replaced with new NCP signage demonstrating the new charge of £100 or warnings of ANPR by 01/09/2018. The burden of proof lies with NCP to dispute the driver’s assertion that all old signage had not been changed over to new NCP signage at every location in the car park.

    Fig 1.1
    Previous signage on top floor of Spires car park at material time of incident on 01/09/18 was similar to this signage, with a blue and/or grey background. Not the distinctive yellow signage associated with NCP. This indicates the NCP changeover to its yellow signage had not been completed throughout the multi-storey car park by 01/09/2018.

    Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £100, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist. 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:

    UK Supreme Court - “Parking charge neither extravagant nor unconscionable… taking into account use of this particular car park & clear wording of the notices”.

    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.

    Here is the 'Beavis case' sign (below) as a comparison to the signs under dispute in this case:

    This can be compared with signage photographs taken after September 18th 2018 in fig 1.2 and 1.3:

    Fig 1.2
    Main carpark entrance. This is a public pedestrian thoroughfare where the driver’s attention is directed to the safety of the pedestrians and not the badly positioned signage which should be positioned at eye level with the parking rates and penalty charges clearly indicated. Furthermore, this entrance is off a main road, where it would be inadvisable to stop in order to read signage. Difficult to see £100 charge.

    Fig 1.3
    Image taken after 18/09/2018. Another inadequately informed sign which fails to mention that a £100 charge may be applied for late return.

    And signage taken on 18/09/18 (Figs 1.4 and 1.5) after signage on the top floor parking location of incident had been changed to new yellow signage in situ at the material time of incident on 01/09/2018. These new signs were not the previous blue-grey signs from the previous operator still in situ at the location on the top floor where the driver parked at the material time of the incident.

    Fig 1.4
    Taken on 18/09/18, this was location of the parking machine where driver parked on 01/09/2018. The signage was in situ on 18/09/18 but not at the material time of the incident on 01/09/18, when the driver only saw old blue grey signage, not the yellow NCP signage which has now replaced it. This parking machine has a temporary piece of paper with the yellow NCP insignia clearly covering up instructions from previous system of old operator. Again, another inadequately informed sign which fails to mention that a £100 charge may be applied for late return.

    Fig 1.5
    This was image taken on 18/09/18 of sign newly installed next to parking machine on top floor. This was not the sign in situ that driver saw at material time of incident on 01/09/2018. At material time it was a very different sign, the old grey-blue signage used by previous operator, not yet updated as part of gradual changeover.

    The new sign’s warning of a £100 parking charge in the event of non payment is very difficult to see as lettering is the smallest size on the sign. This information is not ‘prominent’ and of ‘large lettering’ which should be the standard. Again, unclear ANPR information is positioned at eye level and is not explicit about what the data from cameras is actually used for.

    Overall by comparison in all of the signage in this case (Fig 1.2-1.6), this signage 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.

    Fig 1.6
    Image taken after 18/09/2018 of obscure signage on middle storey of car park. Poorly appointed signage on back post of parking bay - too far away to read. At time of image taken, standing next to a defunct payment machine. ANPR details are impossible to see from a distance and again there is no mention of parking charge for overstaying.

    In this case, the NCP 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 (fig 4.5) , 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).

    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 - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor automatically parked near one. There are no easily visible signs on the entrance as lettering of terms and conditions are small.

    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. 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.

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

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''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.''

    ''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':

    (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.

    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:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    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. 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.

    Fig 1.7
    Witness statement by regular car park user C. Roberts on 09/12/2019
    “NCP has failed to adequately advise of changes to parking arrangements such as the introduction of ANPR, worsened by poor display use and the inappropriate sizing of signage.
    The Spires (Barnet) carpark has been undergoing various changes for the period of 2018, during which changes have been introduced gradually and as far as I am aware have been still ongoing even until recently (e.g. a few of the old machines were still in place). As a regular shopper to The Spires, I consider these ongoing works to have been seemingly endless and un-histrionic and as such, consider any new signage to have failed the test of ‘large lettering’ and ‘prominence’ of the parking charges and introduction of new ANPR. In fact, I am unaware of ANY signage being clearly displayed outlining the new parking regulations particularly the introduction of ANPR.
    I consider NCP’s stealth like introduction of ANPR, especially paying on entrance and not exit, is not transparent and needs to be reviewed as there have been hundreds of drivers complaining to The Spires management since NCP took over, having been unfortunate enough to receive a PCN unwittingly through not being aware of a change in parking arrangements or the introduction of ANPR. “
    • ohhdeeear
    • By ohhdeeear 15th Jan 19, 9:15 PM
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    ohhdeeear
    Points 5 and 6 are standard

    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, I require that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights – is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Section 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3 The written authorisation must also set out:
    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
    d) who has the responsibility for putting up and maintaining signs
    e) the definition of the services provided by each party to the agreement.

    6. 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

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

    https://ico.org.uk/media/for- organisations/documents/1542/cctv-code-of-practice.pdf

    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 DPA. Any organization using cameras to process personal data should follow the recommendations of this code.”

    “If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”

    “You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on
    individuals”

    “You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper assessment.”

    “If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.”

    “Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimize these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.”

    “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’s CCTV Code of Practice state that if National Car Parks Limited 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 National Car Parks Limited must regularly evaluate whether it is necessary and proportionate to continue using it. It therefore follows that I require National Car Parks Limited 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:
    • 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.”

    National Car Parks Limited has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, National Car Parks Limited 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’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.
    • Coupon-mad
    • By Coupon-mad 15th Jan 19, 9:18 PM
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    Coupon-mad
    I reckon you have thrown the kitchen sink at this very well & IMHO, NCP will fold!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
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    • ohhdeeear
    • By ohhdeeear 15th Jan 19, 9:22 PM
    • 25 Posts
    • 7 Thanks
    ohhdeeear
    Points 7 and 8 are standard. Point 9 about failing ANPR has been adapted as have evidence that 100s of customers had incorrect PCNs due to ANPR failings with 100s of complaints to retail centre.

    7. 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.

    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;”

    National Car Parks Ltd’s NtK simply claims that the vehicle entered at 14:48 and departed at 16:19. At no stage does National Car Parks Limited explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

    National Car Parks Limited uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the car park.

    It is not in the gift of National Car Parks Ltd 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, National Car Parks Ltd are not able to definitively state the period of parking.

    I require National Car Parks Limited 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, NOT merely evidence of entering and exiting, which does NOT specifically identify period of parking.


    8. 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 NtK in question contains two close-up license plate images. The time and date stamp inserted into above (but not part of) the images and an enhanced image of the number plate inserted below. The images do not show the vehicle parked in the carpark in an unauthorised way. Thus I require confirmation of the vehicle parked in an unauthorised way.

    I require National Car Parks Limited to produce evidence of the original images containing the required date and time stamp and images showing the car is actually parked in the location stated rather than simply entering and exiting the car park.

    Recent investigation (27 Apr 2018) by BBC (http://www.bbc.co.uk/news/business-43912327) shows that the private parking industry is unregulated and does not have any accountability. Various cases show the industry’s priority is maximizing the penalty received from the motorist without due regard to the integrity of the evidence. Private parking
    operators are financially incentivized not to use the original image as evidence, but putting partial evidence together to generate a case biased towards generating a penalty fee. Based on the fact above, I require National Car Parks Limited to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.


    9. The ANPR System is Neither Reliable nor Accurate

    National Car Parks Ltd’s NtK simply claims that the vehicle entered at 14:48 and departed at 16:19. National Car Parks Limited states the images and time stamps are collected by its ANPR camera system installed on site.

    In terms of the technology of the ANPR cameras themselves, POPLA please take note and bin your usual 'ANPR is generally OK' template because:

    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 proof of this assertion here are two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits:

    Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow 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 conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:
    ''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.'' Our auditors check
    operators compliance with this Code clause and not the cameras themselves.''

    Secondly, ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question. The BPA even warned about ANPR flaws:
    http://www.britishparking.co.uk/Other-Advice#4
    ''As with all new technology, there are issues associated with its use'' and 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. National Car Parks Limited is put to strict proof that the system has not failed visitors to this site.

    POPLA cannot use your usual 'the BPA audits it' erroneous template which needs consigning to the bin. Please show the above email from Steve Clark, to your Lead Adjudicator.

    Kindly stop assuming ANPR systems work, and expecting consumers to prove the impossible about the workings of a system over which they have no control but where independent and publicly available information about its inherent failings is very readily available.

    In fact it has been well documented that ANPR at xxxx has failed since National Car Parks Limited have been in charge during 2018. Local press have reported failings, warning “Beware if you’re parking in xxx in Barnet” at https://www.times-series.co.uk/news/16122627.beware-if-youre-parking-in-the-spires-the-rules-have-changed/

    Residents have taken to social media to complain about the machines since the beginning of 2018 and are still complaining about problems and errors as lately as December 2018 to January 2019 on resident forum Next Door. See Fig 1.7 and 1.8 below.

    Fig 1.7

    Fig 1.8

    And The xxx management have admitted in an email (see Fig 1.9) that they have had hundreds of complaints from customers having problems at the car park since ANPR was introduced by National Car Parks Limited in March 2018. The manager said:
    “This has unfortunately caught out lots of customers since the ANPR being installed back in March. This has resulted in 100’s of customers coming to xxx and I for support in overturning their PCN charges.

    “This has resulted in numerous meetings with the Car Park operator to get these under control, which resulted in PCN’s issued that are deemed at fault of NCP being overturned…”

    Fig 1.9
    • ohhdeeear
    • By ohhdeeear 19th Jan 19, 10:46 PM
    • 25 Posts
    • 7 Thanks
    ohhdeeear
    Slight drama while trying to finish posting rest of the POPLA appeal a few days ago - suddenly got stopped in the midst of it all by IP address being banned(??).

    Still managed to get appeal uploaded on POPLA site with 3 mins to spare... However, NCP's notice processing dept decided that I hadn't appealed after all (or perhaps they are just trying it on), so very next day they issued a Final Reminder letter. Is this a usual tactic of theirs? My appeal has been submitted and is being processed according to POPLA.

    NCP assert I've "not complied" (am I a robot?) with paying outstanding amount, with supplying driver's details, nor have I appealed apparently (not made a representation against the PCN). They're threatening me with legal action, debt collection fees, court costs, passing my details to their lovely debt collector if I don't cough up in 14 days.

    I really have better things to do in my precious spare time.. what little I have... than becoming an amateur lawyer. So I've emailed a complaint to Steve C at BPA about NCP breaching Code of Practice (presume that's safe to say) and to landowners/real estate bods and local MP.

    Can upload Final Reminder copy if helpful, and/or my email complaint. Added to complaint for benefit of MP and landowner that ever since NCP took over, hundreds of customers at shopping centre have complained about being caught out by wrong signage, faulty machines and ANPR, as documented by local press, social media and even local shopping management themselves. Shopping centre has history of struggling with footfall. Many complainants swearing never to park in NCP again, and less likely to shop there.

    Any advice on what else I can do or tactics?

    Many thanks.
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