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CCTV PCN Park Watch Chester at Silver St Bristol Easter Saturday, Contravention: 'No Waiting'
NLondoner
post Mon, 9 Apr 2018 - 18:24
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Got this 'No Waiting' PCN today, 9 days after the alleged incident. Never had a non-Council one before - doesn't seem fair.
Am asking them to cancel it because their signs are awful but I wonder if there are any other grounds?

Pepipoo is full of great resources. I searched for Park Watch and went through the responses.
Can't find any discussions about Park Watch on the MopneySavingExpert site (who apparently used to be called Defence Systems) apart from this one (Park Watch PCN)

I also found these in case that helps anyone:
Helpful newbie guide on MoneySavingExpert
Parking Tickets, Fines & Parking section on MoneySavingExpert
Successful complaints about private parking tickets - how to get them cancelled!
POPLA site - What happens after you get refused and receive an appeal code

Thanks to a MoneySavingExpert.com forum post, want to email to appeals@parkwatch.co.uk this text:
---------- suggested email -------
Dear Sir/Madam,

Re PCN number: xxxxxxx

I am the keeper of the vehicle which received this purported 'parking charge'. There will be no admissions as to who was driving and no assumptions can be drawn. I am not liable and I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs are in small print and the onerous terms are not readable.

Should you fail to cancel this PCN immediately, I require the following information with your template rejection:

1. Does your charge represent damages for breach of contract? Answer yes or no.
2. Please provide dated photos of the signs that you say were on site, which you contend formed a contract.
3. Please provide all photographs taken of this vehicle.

I am alarmed by your contact and I do not give you consent to process any data relating to me, or this vehicle. I deny liability and will not respond to debt collectors. You must consider this letter a Section 10 Notice under the DPA, and should you fail to respond accordingly, your company will be reported to the Information Commissioner.

I have kept proof of submission of this appeal and will also be making a formal complaint to your client landowner, PureGym.

If you are a current BPA member, send me a POPLA code. If you are an IPC firm, cease and desist with all contact.

Yours faithfully,

my name
Registered keeper of car reg num
My address and email
--------- ends -------------
Very glad of any comments.


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post Mon, 9 Apr 2018 - 18:24
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ostell
post Mon, 9 Apr 2018 - 18:41
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They have failed to fully comply with POFA, namely 9 (2) (e) is not in the required format.

9 (2) (f) is also not in the required format.

The required statement of period of parking, 9 (2) (a) is not there.

The sign is probably a no waiting sign and therefore prohibitive and therefore no offer of a contact to park. No contract = No contract to breach = no charges. Get a copy of the signs if you can.

No keeper liability, a simple BOGOFF response probably.

This post has been edited by ostell: Mon, 9 Apr 2018 - 18:42
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SchoolRunMum
post Mon, 9 Apr 2018 - 20:58
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I found 46 MSE threads about ParkWatch, by searching for their name as a single word.

I think the issues with the NTK wording are minimal and POPLA might find that document compliant with the POFA.

What I would do at POPLA stage is put the PPC to strict proof that the car was not simply unloading in that unloading bay. They have shown one photo of the car with the lights on (if it's the front vehicle) and then another pic a few mins later, headlights off. All that tells me is that the car is being unloaded and the driver has stepped out to fetch the items from adjoining premises.

Put them to proof of that as part of your POPLA appeal because the legend on the road positively allows loading, and there is no evidence that this was not the case. Of course there are then the other usual templates to add to a POPLA appeal as shown in the third post of the NEWBIES thread there, to make it so long that PW might just give up.

You could also add a new point at POPLA stage, a new one I am encouraging people to test in defences and POPLA appeals where ANPR was used, saying that the operator as not complied with the mandatory ICO data protection Code of Practice for surveillance cameras and personal information, full compliance with which is a pre-requisite of the DVLA KADOE contract and the BPA Code of Practice:

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

QUOTE
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
organisation 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 minimise these intrusions,''


'' 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.''


Clearly aiming an ANPR camera at a loading bay - something that Local Authorities were banned from doing on street a year or more ago - cannot differentiate between drivers who are parked and those who are genuinely loading/unloading (often by necessity, remaining unseen inside premises for several minutes fetching bulky items/getting forms signed, etc.).

Therefore, given that it cannot be assumed by POPLA that a driver is not in fact involved in loading/unloading activity, which never requires a person to be visible at the vehicle at all times, and the ANPR images are incapable of showing what the driver is doing during those minutes it is unfit for purpose at this particular location, not a suitable medium for 'monitoring' a loading bay and so, the use of ANPR here has no lawful basis and is neither justified, necessary nor proportionate.

With no lawful basis to use ANPR, there is no lawful excuse for this parking charge.

Moreover, they have not stated on signage how the ANPR data will be used. A camera icon merely communicates security cameras, not data harvesting for the hidden commercial purpose of issuing parking charge notices for enforcement, which MUST be clearly communicated on signs.

And they have neither stated on signage, nor on the Notice to Keeper (despite the 'DPA' heading on the back) the required Privacy Notice explaining keeper's right to a SAR:

QUOTE
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.''


As such, given the omissions and breaches of the ICO CoP, and in turn the BPA CoP that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

This post has been edited by SchoolRunMum: Mon, 9 Apr 2018 - 21:28
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emanresu
post Sun, 15 Apr 2018 - 07:04
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QUOTE
''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.''


This is a significant point under the new GDPR from 25th May 2018.

QUOTE
Key changes under the GDPR

Your service needs to be able to demonstrate that you comply with the law through policies and procedures

You must document the data you hold, where it came from and who you share it with

You must complete a data protection impact assessment when making certain changes to the way you use data

You need to have more robust procedures in place if you process children’s personal data

You’ll have to report serious data breaches to the ICO within 72 hours of becoming aware of them: UCS please note.

You must explain clearly and in detail how you use people's data in privacy notices

People can ask you to delete their data, change it or give them a copy within a month of the request [Relevant for the issue where there is no KL and the RK was not driving]

You need to check you have appropriate safeguards for data sharing, in particular outside the EU

When you get consent to use or share personal data it needs to be more specific and you’ll need a record of it


This post has been edited by emanresu: Sun, 15 Apr 2018 - 07:05


--------------------
Where there is a claim - there is a counterclaim.
Are Parking companies misusing your personal data or interfering with your lease? Counterclaims are only £25. Makes them sit up and take notice. For leaseholds, join in the Managing agents too. Since the purpose of these claims is to frighten you, give them something to be frightened of.
Subject Access Requests to the DVLA?Find out who accessed your data and when. Try SubjectAccess.Requests@dvla.gsi.gov.uk. [Apologies if it does not work]
Double Dip / ANPR FaultsThe BPA Report on ANPR Double Dips is here. Ideal case for a counterclaim (see above).
Daily Court List. See who is doing what and where here
Printing and posting Witness Statements. Easy and cheap way DoxDirect
What is court like. A District Judge's view
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NLondoner
post Wed, 2 May 2018 - 16:19
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So I emailed in an appeal:
Dear ParkWatch,

Re Notice Reference Number: xxxxx

I am the keeper of the vehicle which received this purported 'parking charge'. There will be no admissions as to who was driving and no assumptions can be drawn. I am not liable and I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs are in small print and the onerous terms are not readable.
You ought to know that all thre cars were unloading at the time you caught us dopping off the stuff.

Should you fail to cancel this PCN immediately, I require the following information with your template rejection:

1. Does your charge represent damages for breach of contract? Answer yes or no.
2. Please provide dated photos of the signs that you say were on site, which you contend formed a contract.
3. Please provide all photographs taken of this vehicle.

I am alarmed by your contact and I do not give you consent to process any data relating to me, or this vehicle. I deny liability and will not respond to debt collectors. You must consider this letter a Section 10 Notice under the DPA, and should you fail to respond accordingly, your company will be reported to the Information Commissioner.

I have kept proof of submission of this appeal and will also be making a formal complaint to your client landowner, PureGym.

If you are a current BPA member, send me a POPLA code. If you are an IPC firm, cease and desist with all contact.

Yours faithfully,
and got this back:


I'd like to take the advice in this thread, for which I am extremely grateful, and appeal using the suggested text. I'll post my full text here after waiting a tiny bit in case anyone has any further comments. Please note, all three cars were doing the same unloading, to the same studios just round the corner at the time and all have gotten similar notices from ParkWatch.
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nosferatu1001
post Thu, 3 May 2018 - 07:37
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Gah. Why on earth did you add "caught us"? It implies the drivers identity

Post your POPLA appeal. "loading and unloading£" is NOT parking, and this is confirmed in the TMA2004 - you can draw attention to that the CRA states the favoured interpretation must be used, and any driver knows that loading and unloading is allowed ewhere parking is not.
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NLondoner
post Thu, 3 May 2018 - 11:16
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I'm an idiot! Didn't want to use up more forum goodwill so wrote the email based on the kind input here without 'screening' it first.
I meant 'us' in the sense of 'the public' as I was not actually present.
A stranger hired out my car over the weekend via EasyCar. I believe him when he says it was his band who were unloading music gear.
He's agreed to pay if he must but I've been helped here and want to pass a tiny bit on by helping him not get fined illegally.

I also cannot find the 'NEWBIE' thread Schoolrunmum refers to. I've used the info in "Dealing with "tickets" from Private Parking Companies (PPCs), Amended to reflect Protect of Freedoms Act provisions" http://forums.pepipoo.com/index.php?showtopic=46975 maybe that's it?
-------------------------------
I presume the signs are similar to the pic in this Dec 2016 helpful thread, about a ParkWatch car parking fine

This is from 2014:

This is what Google maps shows for 2017:




Found this Pepipoo thread from about the same place where the POPLA cancelled the charge "on the grounds that the operator has no authority from the landowner to issue parking charges on the land . The operator didn't provide a copy of a signed contract between themselves and the landowner, the one they provided was a template with no signatures and no dates therefore not proving there was a contract in place on the day of the alleged contravention"
So I've included the wording that person used on their appeal.

I don't know how to express the fact that I was hundreds of miles away at the time. Should I include the email from EasyCar, which will identify the driver?
According to this 'sticky' thread, as I have ignored ParkWatch's request to identify the driver, it doesn't seem to matter that I was not there:
--------------
Protection of Freedoms Act (England and Wales only)

In England and Wales the Protection of Freedoms Act has introduced some changes that might affect your decision whether to simply ignore a PPC ticket. These changes apply only to parking companies that are also members of the BPA AOS scheme, and are principally:
The PPC may "invite" (not demand, nor require) the RK to provide the details of the driver at the time of the alleged transgression. If the RK doesn't do so, or their invitation is ignored, the PPC is entitled to pursue the RK for whatever charge they are lawfully entitled to from the driver. If the RK does give the name of the driver, the PPC must solely pursue the driver. Therefore as long as the PPC goes through the correct process, relying solely on the argument that "I was not the driver" won't help you. However that is the only change, and if the decision is to ignore then it simply means that the RK ignores rather than the driver.
There is an independent "appeals" process, operated by Parking on Private Land Appeals (POPLA). The grounds on which POPLA will consider an appeal look to be narrow and until the first appeals are heard we don't know the stance it will take. However the appeal costs you nothing and costs the PPC £27+ VAT, so we would recommend that everyone who is so inclined appeals. The best grounds seem to be:
"The parking charge (ticket) exceeds the relevant amount" (if the charge is not valid it should be zero), and;
"I am not liable for the parking charge" (if the charge is an unlawful penalty, or the PPC has no interest in the land to offer a contract, etc there will be no liability)
Even if you lose at POPLA, it's not binding on you and the PPC would still have to go to court if they wanted to pursue their claim. Note that you will have to exhaust the PPC's own so-called "appeals" process before POPLA will consider an appeal to them.
------------------






Suggested POPLA Appeal text:
-------------------------------------------


POPLA ref
Car reg
on the xxxxxxxxxxx ref xxxxxx

As the registered keeper of this vehicle I appeal so as to have cancelled the parking charge notice issued by ParkWatch, because:


1. ParkWatch has no contractual authority
2. The charge is punitive and not a genuine pre-estimate of loss
3. Signage is inadequate and unclear
4. Unfair terms of contract
5. Without contract
6. Loading\unloading is allowed.
7. "loading and unloading" is NOT parking
8. I was not present.
9. ParkWatch has not complied with the mandatory ICO data protection Code of Practice for surveillance cameras and personal information.

1.ParkWatch has no contractual authority

In the notices ParkWatch have sent they do not prove any proprietary interest in the land in question. Neither have they provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem they do not own or have any interest or assignment of title in the land. I assume instead they are agents for the owner/legal occupier instead. If so I require ParkWatch to provide me with the full up to date signed/dated contract they have with the landowner. I need to see the actual contract, which needs to state ParkWatch are entitled to pursue matters such as these through the issue of notices and in the courts in their own name. I clarify this must be the actual copy and not just a document claimimg a contract/agreement exists.

2. The charge is punitive and not a genuine pre-estimate of loss

The PCN issued states it is for contravention of parking in a no parking area and therefore a breach of the terms and conditions displayed at the back of the site . The penalty issued was £110 and my vehicle had only been stationary on the land for 3minutes and 37 seconds. That’s over 50p/second. I would like to see a breakdown of how this has been calculated and would like to bring to their attention the BPA code of practice 19.5 which states “If the parking charge that the driver is been asked to pay is for a breach of contract or act of trespass, this charge MUST be based on the genuine pre-estimate of loss that you suffer“. A charge for damages must be compensatory in nature rather than punitive. This charge must have arisen from my vehicle alone being stationary in that position for 217 seconds and I demand to know how the figure of £110 has been calculated.

3. Signage is inadequate

The wording of the signage states “This land is private property“ then in very small writing “failure to comply with the following terms and conditions MAY result in a parking charge“ the use of the word MAY is not enough to form a contract. ParkWatch have failed to fully comply with POFA, namely 9 (2) (e) is not in the required format.

9 (2) (f) is also not in the required format.

The required statement of period of parking, 9 (2) (a) is not there.

The sign is probably a no waiting sign and therefore prohibitive and therefore no offer of a contact to park.
No contract = No contract to breach = no charges.

4. Unfair terms of contract.

If there were to be have been any contract between the driver or myself and ParkWatch I would ask POPLA to consider this to be unfair and non-binding based on the Unfair Terms in Consumer Contract Regulations 1999. There is a clear list of terms that apply specifically the following .

2.(1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation

5.(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations arising under the conract, to the detriment of the consumer.

5.(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the outcome.

6. "loading and unloading" is NOT parking
TMA 2004 https://www.legislation.gov.uk/ukpga/2004/18/part/6 states that "loading and unloading" is permitted. "Loading and unloading" is NOT parking.

86Prohibition of parking at dropped footways etc.
(1)In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

There is the following exception:
(5)The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.

7. The car was simply unloading in an unloading bay. ParkWatch shows one photo of the car with the lights on (it's the front vehicle) and then another pic a few mins later, headlights off. That shows that the car is being unloaded and the driver has stepped out to fetch the items from adjoining premises. The legend on the road positively allows loading. ParkWatch have provided no strict proof to the contrary because there is none.

8. I was not present. I had hired my car out via EasyCar to a stranger who was present. ParkWatch have not identified the driver.

9. ParkWatch has not complied with the mandatory ICO data protection Code of Practice for surveillance cameras and personal information, full compliance with which is a pre-requisite of the DVLA KADOE contract and the BPA Code of Practice (https://ico.org.uk/media/1542/cctv-code-of-practice.pdf). This code also covers the use of camera related surveillance equipment including:
---------------- code extract --------------
 Automatic Number Plate Recognition (ANPR);

the private sector is required to follow this code to meet its legal obligations under the DPA. Any organisation 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 minimise these intrusions,''

'' 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.''
--------------ends -----------------
Clearly aiming an ANPR camera at a loading bay - something that Local Authorities were banned from doing on street a year or more ago - cannot differentiate between drivers who are parked and those who are genuinely loading/unloading (often by necessity, remaining unseen inside premises for several minutes fetching bulky items/getting forms signed, etc.).

Therefore, given that it cannot be assumed by POPLA that a driver is not in fact involved in loading/unloading activity, which never requires a person to be visible at the vehicle at all times, and the ANPR images are incapable of showing what the driver is doing during those minutes it is unfit for purpose at this particular location, not a suitable medium for 'monitoring' a loading bay and so, the use of ANPR here has no lawful basis and is neither justified, necessary nor proportionate.

With no lawful basis to use ANPR, there is no lawful excuse for this parking charge.

Moreover, ParkWatch have not stated on signage how the ANPR data will be used. A camera icon merely communicates security cameras, not data harvesting for the hidden commercial purpose of issuing parking charge notices for enforcement, which MUST be clearly communicated on signs.

And ParkWatch have neither stated on signage, nor on the Notice to Keeper (despite the 'DPA' heading on the back) the required Privacy Notice explaining keeper's right to a SAR:
------------- SAR ----------------
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.''
------------ ends -------------------
As such, given the omissions and breaches of the ICO CoP, and in turn the BPA CoP that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

Under the GDPR which is in force from this month:
Your service needs to be able to demonstrate that you comply with the law through policies and procedures
You must document the data you hold, where it came from and who you share it with
You must complete a data protection impact assessment when making certain changes to the way you use data
You need to have more robust procedures in place if you process children’s personal data
You’ll have to report serious data breaches to the ICO within 72 hours of becoming aware of them: UCS please note.
You must explain clearly and in detail how you use people's data in privacy notices
People can ask you to delete their data, change it or give them a copy within a month of the request [Relevant for the issue where there is no KL and the RK was not driving]
You need to check you have appropriate safeguards for data sharing, in particular outside the EU
When you get consent to use or share personal data it needs to be more specific and you’ll need a record of it

----------------------------------

This post has been edited by NLondoner: Thu, 3 May 2018 - 11:22
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nosferatu1001
post Thu, 3 May 2018 - 13:59
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If you cant find the NEWBIES thread, you likely are NOT in the right MSE forum
You need to go to MSE -> Forums -> Parking sub forum. the newbies thread is pinned so it is always about the third thread down from the top.
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NLondoner
post Thu, 3 May 2018 - 16:12
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QUOTE (nosferatu1001 @ Thu, 3 May 2018 - 14:59) *
If you cant find the NEWBIES thread, you likely are NOT in the right MSE forum
You need to go to MSE -> Forums -> Parking sub forum. the newbies thread is pinned so it is always about the third thread down from the top.


Ah, thanks! Thought there was another NEWBIES thread elsewhere I'd missed.

If it helps anyone else:

Here is the link to the Money Saving Expert Parking Tickets, Fines & Parking Forum
https://forums.moneysavingexpert.com/forumdisplay.php?f=163
Here is the Parking Tickets, Fines & Parking Forum NEWBIES 'sticky' thread
https://forums.moneysavingexpert.com/showth...d.php?t=4816822


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SchoolRunMum
post Tue, 8 May 2018 - 21:49
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Don't include a point about not a genuine pre-estimate of loss, eeek! That's ancient and will lose.

And this was awful when it was first written, I thought we'd seen the last of these two terrible points:

QUOTE
4. Unfair terms of contract
5. Without contract


Where is your point about no keeper liability, and the one that normally follows it, about the appellant not being the individual liable?

And the ICO point should NOT talk about rules coming in under GDPR, because that's not happening until 25th May and would give POPLA an easy reason to ignore the entire point, which has NOTHING to do with GDPR and stands alone as an argument about data protection rules that already exist.

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NLondoner
post Wed, 23 May 2018 - 16:25
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Thanks so much for the have offered here! I have done hours and hours of reading but have confused myself.
I am worried I've accidentally ruined one aspect of my defence by use of the phrase?
I was not the driver and can prove that, but I don't know if the fact the the PCN contains a form where I can identify the driver makes that defence invalid?
Ought I to submit Easycar rental records and testimony of the guy who hired my car over Easter through them, which will identify him?

I've re-done it based on my reading - hope you can spot faults! thanks again for the tremendous help and support.
C.

23rd May version Suggested POPLA Appeal text:
-------------------------------------------
POPLA ref
Car reg
on the xxxxxxxxxxx ref xxxxxx

As the registered keeper of this vehicle I appeal so as to have cancelled the parking charge notice issued by ParkWatch, because:

1. ParkWatch has no contractual authority
2. Signage is inadequate and unclear
3. Loading\unloading is allowed and is NOT parking
4. ParkWatch has not complied with the mandatory ICO data protection Code of Practice for surveillance cameras and personal information.
5. I was not the driver. I hired out my car to another person via EasyCar and can prove it.

1.ParkWatch has no contractual authority

In the notices ParkWatch have sent they do not prove any proprietary interest in the land in question. Neither have they provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem they do not own or have any interest or assignment of title in the land. I assume instead they are agents for the owner/legal occupier instead. If so I require ParkWatch to provide me with the full up to date signed/dated contract they have with the landowner. I need to see the actual contract, which needs to state ParkWatch are entitled to pursue matters such as these through the issue of notices and in the courts in their own name. I clarify this must be the actual copy and not just a document claimimg a contract/agreement exists.

2. Signage is inadequate

The wording of the signage states “This land is private property“ then in very small writing “failure to comply with the following terms and conditions MAY result in a parking charge“ the use of the word MAY is not enough to form a contract. ParkWatch have failed to fully comply with POFA, namely 9 (2) (e) is not in the required format.

3. "loading and unloading" is NOT parking
TMA 2004 https://www.legislation.gov.uk/ukpga/2004/18/part/6 states that "loading and unloading" is permitted. "Loading and unloading" is NOT parking.

86Prohibition of parking at dropped footways etc.
(1)In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

There is the following exception:
(5)The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.

The car was simply unloading in an unloading bay. The legend on the road positively allows loading, and there is no evidence that this was not the case. ParkWatch shows one photo of the car with the lights on (it's the front vehicle) and then another pic a few mins later, headlights off. That shows that the car is being unloaded and the driver has stepped out to fetch the items from adjoining premises. The legend on the road positively allows loading. ParkWatch have provided no strict proof to the contrary because there is none. "loading and unloading£" is NOT parking, and this is confirmed in the TMA2004 - the CRA states that a 'favoured' interpretation must be used. Drivers know that loading and unloading is allowed where parking is not.

4. ParkWatch has not complied with the mandatory ICO data protection Code of Practice for surveillance cameras and personal information, full compliance with which is a pre-requisite of the DVLA KADOE contract and the BPA Code of Practice (https://ico.org.uk/media/1542/cctv-code-of-practice.pdf). This code also covers the use of camera related surveillance equipment including:
---------------- code extract --------------
 Automatic Number Plate Recognition (ANPR);

the private sector is required to follow this code to meet its legal obligations under the DPA. Any organisation 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 minimise these intrusions,''

'' 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.''
--------------ends -----------------
Clearly aiming an ANPR camera at a loading bay - something that Local Authorities were banned from doing on street a year or more ago - cannot differentiate between drivers who are parked and those who are genuinely loading/unloading (often by necessity, remaining unseen inside premises for several minutes fetching bulky items/getting forms signed, etc.).

Therefore, given that it cannot be assumed by POPLA that a driver is not in fact involved in loading/unloading activity, which never requires a person to be visible at the vehicle at all times, and the ANPR images are incapable of showing what the driver is doing during those minutes it is unfit for purpose at this particular location, not a suitable medium for 'monitoring' a loading bay and so, the use of ANPR here has no lawful basis and is neither justified, necessary nor proportionate.

With no lawful basis to use ANPR, there is no lawful excuse for this parking charge.

Moreover, ParkWatch have not stated on signage how the ANPR data will be used. A camera icon merely communicates security cameras, not data harvesting for the hidden commercial purpose of issuing parking charge notices for enforcement, which MUST be clearly communicated on signs.

And ParkWatch have neither stated on signage, nor on the Notice to Keeper (despite the 'DPA' heading on the back) the required Privacy Notice explaining keeper's right to a SAR:
------------- SAR ----------------
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.''
------------ ends -------------------
As such, given the omissions and breaches of the ICO CoP, and in turn the BPA CoP that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

5. I was not the driver. I hired out my car to another person via EasyCar and can prove it.
The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

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

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

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

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

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

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

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

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

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
-------------------------------- end of POPLA Appeal text -------------------
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nosferatu1001
post Wed, 23 May 2018 - 17:41
Post #12


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You don't have to identify the driver. Nothing negative can be drawn by not saying who the driver is.
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NLondoner
post Wed, 23 May 2018 - 22:13
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QUOTE (nosferatu1001 @ Wed, 23 May 2018 - 18:41) *
You don't have to identify the driver. Nothing negative can be drawn by not saying who the driver is.

Thanks! I won't identify him, just state I was not the driver and can prove it. I had thought that, as the PCN gives me the chance to identify the driver, it was no defence that it was not me.
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nosferatu1001
post Thu, 24 May 2018 - 08:44
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Of course not. Your reading around will tell you that.
They can always invite you to name the driver. Youre never under any cpmulsion to do so, unless a court has ordered it.
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NLondoner
post Thu, 24 May 2018 - 12:39
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Thanks nosferatu1001!
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NLondoner
post Thu, 14 Jun 2018 - 17:16
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So Parkwatch just posted their refutation - presumably they feel sure they'll win otherwise they wouldn't have contested?
There's space on the Popla website for me to comment further but I've said all that I need to say, haven't I?
Glad of any comments.

Parkwatch refutation page 1 of 2

Parkwatch refutation page 2 of 2


drawing of signs by signmaker


customer licence agreement


closeups 1 of 3


closeups 2 of 3


closeups 3 of 3


--------------------------------------------------------

There are some more photos of the signs, but the forum rules don't allow me to post them, so here they are as links:

EV6a Site plan Displayed Signs

EV6b Sign 1 of 4

EV6b Sign 2 of 4

EV6b Sign 3 of 4

EV6b Sign 4 of 4
----------- ends -------------

This post has been edited by NLondoner: Thu, 14 Jun 2018 - 21:12
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cabbyman
post Thu, 14 Jun 2018 - 17:31
Post #17


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Take that down INSTANTLY and edit out POPLA refs and any other identifying info. This is CRUCIAL!!!!


--------------------
Cabbyman 10 PPCs 0
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Sheffield Dave
post Thu, 14 Jun 2018 - 20:36
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Nice of them to admit in black and white that "there is no offer to park or wait". If there was no offer, there could be no contract.
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NLondoner
post Thu, 14 Jun 2018 - 21:18
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QUOTE (cabbyman @ Thu, 14 Jun 2018 - 18:31) *
Take that down INSTANTLY and edit out POPLA refs and any other identifying info. This is CRUCIAL!!!!

Many apologies, sorry, thought I had. Been over them carefully and don't think there's any personal traces now.

QUOTE (Sheffield Dave @ Thu, 14 Jun 2018 - 21:36) *
Nice of them to admit in black and white that "there is no offer to park or wait". If there was no offer, there could be no contract.

Thanks Dave - ought I to make that additional comment now they've uploaded their 'evidence' or will the adjudicator spot it?
Don't understand though, if there's no offer to park and you do, how is that OK? Is it because even, say, a homeowner with a drive can't fine people who park without permission?
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emanresu
post Fri, 15 Jun 2018 - 05:32
Post #20


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From: Parking Support Groups
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QUOTE
Don't understand though, if there's no offer to park and you do, how is that OK?


If there is no offer or contract, there can never be a breach of contract which is what they are claiming. The alternative is that the driver was trespassing and in the ParkingEye v Beavis case, the Judges made it clear that only the landowner can sue for trespass.


--------------------
Where there is a claim - there is a counterclaim.
Are Parking companies misusing your personal data or interfering with your lease? Counterclaims are only £25. Makes them sit up and take notice. For leaseholds, join in the Managing agents too. Since the purpose of these claims is to frighten you, give them something to be frightened of.
Subject Access Requests to the DVLA?Find out who accessed your data and when. Try SubjectAccess.Requests@dvla.gsi.gov.uk. [Apologies if it does not work]
Double Dip / ANPR FaultsThe BPA Report on ANPR Double Dips is here. Ideal case for a counterclaim (see above).
Daily Court List. See who is doing what and where here
Printing and posting Witness Statements. Easy and cheap way DoxDirect
What is court like. A District Judge's view
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