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  • FIRST POST
    • helpneeded2018
    • By helpneeded2018 10th Nov 18, 1:15 PM
    • 6Posts
    • 1Thanks
    helpneeded2018
    Britannia Parking, POPLA Appeal
    • #1
    • 10th Nov 18, 1:15 PM
    Britannia Parking, POPLA Appeal 10th Nov 18 at 1:15 PM
    Hello, I have been reading this forum daily since receiving a postal PCN from Britannia Parking for 'failing to make a valid payment', after sending the template in the newbies thread a POPLA code has been received and am drafting up a appeal based on what templates i have found - however before I paste my draft for it to be read, I have a couple of questions below that I am unsure of, any guidance would be appreciated

    1.The car is a lease hire company car, the NTK was sent to LEX 13 days from contravention who then gave employers details and Britannia then sent a Notice to Hirer 24 days from contravention. I have read the newbies thread and unfortunately everything was sent in the correct time schedule - however on the Notice to Hirer they have stated that the 'date of contravention' and the 'date of notice' is the same date - the 26th of September, when infact the parking was on the 4th of September. Is this something worth mentioning? I can't find anything regarding this on the forum.
    2. They have included POFA 2012 paragraph and both the NTK and NTH seems to be compliant this. Am i unable to argue this point?
    3. They have also included 3 images on the appeal rejection of the car parking signs where the £100 is quite clearly shown!! So not sure if there is a leg to stand on using the signage point?

    A parking ticket was purchased for 60p for an hour and it was 27minutes over. They have also noted on the rejection that the grace period is 10 minutes.

    Therefore was going to argue the following points -
    1) 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.
    2) The Operator has a lack of standing or authority from the landowner to issue tickets and pursue charges in their own name at court.
    3) The ANPR system is unreliable and inaccurate. (the images are merely the car entering and leaving the car park with a black strip across the top with very small date and time on)

    I have pieced together my draft so far but just want to see if it is worth mentioning any of the first three points?


    Thank you in advance for your assistance!
    Last edited by helpneeded2018; 10-11-2018 at 2:49 PM.
Page 1
    • Castle
    • By Castle 10th Nov 18, 1:20 PM
    • 2,010 Posts
    • 2,714 Thanks
    Castle
    • #2
    • 10th Nov 18, 1:20 PM
    • #2
    • 10th Nov 18, 1:20 PM
    Edit your post to remove identifying the driver.
    • helpneeded2018
    • By helpneeded2018 10th Nov 18, 2:50 PM
    • 6 Posts
    • 1 Thanks
    helpneeded2018
    • #3
    • 10th Nov 18, 2:50 PM
    • #3
    • 10th Nov 18, 2:50 PM
    Thank you, I have edited accordingly - is it enough?
    • Castle
    • By Castle 10th Nov 18, 3:07 PM
    • 2,010 Posts
    • 2,714 Thanks
    Castle
    • #4
    • 10th Nov 18, 3:07 PM
    • #4
    • 10th Nov 18, 3:07 PM
    Thank you, I have edited accordingly - is it enough?
    Originally posted by helpneeded2018
    Looks okay now... but have they sent the necessary documents as required by paragraph 13(2) of POFA.
    • The Deep
    • By The Deep 10th Nov 18, 3:09 PM
    • 10,605 Posts
    • 10,440 Thanks
    The Deep
    • #5
    • 10th Nov 18, 3:09 PM
    • #5
    • 10th Nov 18, 3:09 PM
    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.
    • MistyZ
    • By MistyZ 10th Nov 18, 3:46 PM
    • 90 Posts
    • 174 Thanks
    MistyZ
    • #6
    • 10th Nov 18, 3:46 PM
    • #6
    • 10th Nov 18, 3:46 PM
    Same question as Castle asks above: have Britannia sent a copy of the hire documents? (See POFA paras 13 & 14).

    I'm currently helping someone fight a Notice to Hirer and the parking companies' non-compliance with POFA in this particular respect seems, as far as I can tell, to be absolutely key to chances of winning hire car appeals.
    • Coupon-mad
    • By Coupon-mad 10th Nov 18, 6:21 PM
    • 63,911 Posts
    • 76,558 Thanks
    Coupon-mad
    • #7
    • 10th Nov 18, 6:21 PM
    • #7
    • 10th Nov 18, 6:21 PM
    It's also 100% winner because no PPC encloses any forms/copy of the NTK with a NTH.
    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
    • helpneeded2018
    • By helpneeded2018 12th Nov 18, 1:15 PM
    • 6 Posts
    • 1 Thanks
    helpneeded2018
    • #8
    • 12th Nov 18, 1:15 PM
    • #8
    • 12th Nov 18, 1:15 PM
    Thank you for your response - no hire documents were received, however LEX have wrote the dates the car is leased too/from on the NTK that is signed and dated along with the address of the hirer. Which would agree to (A) but B or C have not been followed.
    (a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
    (b)a copy of the hire agreement; and
    (c)a copy of a statement of liability signed by the hirer under that hire agreement.
    • nosferatu1001
    • By nosferatu1001 12th Nov 18, 3:10 PM
    • 3,944 Posts
    • 4,738 Thanks
    nosferatu1001
    • #9
    • 12th Nov 18, 3:10 PM
    • #9
    • 12th Nov 18, 3:10 PM
    We know they dont enclose the documents, so your appeal is on that basis
    • helpneeded2018
    • By helpneeded2018 12th Nov 18, 3:26 PM
    • 6 Posts
    • 1 Thanks
    helpneeded2018
    Ok thanks - I will draft a appeal tonight and any pointers would be appreciated
    • helpneeded2018
    • By helpneeded2018 12th Nov 18, 9:17 PM
    • 6 Posts
    • 1 Thanks
    helpneeded2018
    Please see the below draft any assistance would be appreciated
    Please note - Is it still ok to include '13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;' even though the NTK had the date of lease, company details and a signature (i dont want to be tripped up on this!)
    Also some of the wording may be a little off as we are finding the whole keeper/hirer thing a bit confusing

    Dear Sir


    POPLA Ref. [xxxxxxx]
    Britannia Parking PCN Ref. XXXXXXXXX

    We write to lodge details of our dispute with Britannia Parking in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Britannia in respect of an alleged breach of terms and conditions of parking at [Location of Incident] on [Date of Incident].

    The above-detailed vehicle is on long-term lease to our company and we confirm that XXXX is its keeper and hirer for the purpose of the corresponding definitions under the Protection of Freedoms Act 2012 (“POFA”).

    We set out below why XXXX is not liable for this parking charge and wish to appeal on the following grounds:

    1. Britannia have failed to comply with the strict requirements of POFA
    2. No evidence of Landowner Authority – the operator is put to strict proof of full compliance with the BPA code of practice.
    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 ANPR System is neither reliable nor accurate.
    1. Britannia Parking failed to comply with the strict requirements of POFA

    In the case of a PCN issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of POFA to claim unpaid parking charges from a vehicle’s hirer, an operator must:

    1) deliver a Notice to Keeper to the vehicle-hire firm in full compliance with POFA, Schedule 4, Paragraph 8 or 9 (as the case may be);
    2) be provided with the documents specified under POFA, Schedule 4, Paragraph 13 (2) and;
    3) deliver a Notice to Hirer to the vehicle’s hirer in full compliance with POFA, Schedule 4, Paragraph 14.

    POPLA has promised that our case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and we expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that Britannia has failed to comply with Schedule 4 of POFA.

    The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

    Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)). Britannia did not provide us with copy of any of these documents.

    POPLA must not attempt to presume that [xxxx] is “appealing” this PCN on behalf of the driver. For the avoidance of doubt, [xxxx] is simply exercising its right to “appeal” this PCN in its own name in exactly the same way as any other vehicle keeper or hirer is entitled to do.

    Further, we are aware that POPLA has recently sought to adopt new reasoning that, even in the absence of any argument or evidence being presented by the parking company, the only reasonable conclusion is that the driver must an employee of the company undertaking duties in accordance with his or her employer’s wishes. This reasoning is fundamentally flawed and such a conclusion has no valid basis in Law.

    POPLA has promised us that its assessors will look at the evidence that is provided to them from both parties and make a decision based on this alone and we must insist that POPLA keeps its promise.

    2. 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 o fthe 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 we 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


    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 hirer 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. 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 24/7 ANPR enforcement at this site is 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: hxxps://ico.org.uk/media/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 Britannia Parking 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 Britannia Parking must regularly evaluate whether it is necessary and proportionate to continue using it.

    It therefore follows that I require Britannia Parking Ltd 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.”

    Britannia Parking has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Britannia Parking 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.

    Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

    Yours faithfully,
    • helpneeded2018
    • By helpneeded2018 14th Nov 18, 4:55 PM
    • 6 Posts
    • 1 Thanks
    helpneeded2018
    Sorry to ask but is anyone able to quickly scan over the above to see if I am missing anything? I need to submit by the weekend. Many Thanks
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