Mobile phone app to open carpark barrier - legal?

[SS2.]

Forester1965 said:

I think the CPS would struggle to overcome rule 110 (5B). It's clearly analogous, undertaking a 'transaction' to open the barrier as you would another contactless transaction. It'd be perverse if the regulations allowed one and not the other on the basis you're an account holder rather than making a new purchase.

Initial thought is that if Parliament had intended for other forms of contactless transactions to be exempted, it would have said so.

That said, the OP's situation reeks of technology moving a sight faster than the duffers who sit in both the Commons and the Lords..

[QBee]

Robertb said:

Accessing an app with the phone in-hand is certainly illegal, use of a phone to for payment for something at a contactless payment terminal is specifically exempt.
https://www.legislation.gov.uk/uksi/2022/81/made

We had a discussion with our landlords about exactly this, and they installed a barrier system which allows us to call it, and it is set to recognise various mobile numbers as submitted by users.

I have this system for my own gate. It was £50 (10 years ago) from a geezer on Ebay, and it is a little box you wire in in your house, with a SIM card.
Then you set up an administrator, and he/she adds the numbers of permitted users.
They can open the gate from anywhere simply by phoning it.
If a visitor rings the bell on the gatepost, we just phone the gate to let them in.
My wife is deaf and doesn't always hear the bell, so friends have learnt to phone me if I am out.
I can open the gate for them regardless of where I am.

[Forester1965]

SS2. said:

Forester1965 said:

I think the CPS would struggle to overcome rule 110 (5B). It's clearly analogous, undertaking a 'transaction' to open the barrier as you would another contactless transaction. It'd be perverse if the regulations allowed one and not the other on the basis you're an account holder rather than making a new purchase.

Initial thought is that if Parliament had intended for other forms of contactless transactions to be exempted, it would have said so.

That said, the OP's situation reeks of technology moving a sight faster than the duffers who sit in both the Commons and the Lords..

The flip side to that argument is that car parks with contactless pay barrier entry are *exactly* the kind of thing Parliament envisaged when it made the legislation. Taken on your reading, you're left with a lacuna where someone using their phone to pay at a barrier entry would not be committing an offence yet another who pre-payed using the same barrier would, despite doing the same physical thing. Would Parliament really have meant that?

[SS2.]

Forester1965 said:

The flip side to that argument is that car parks with contactless pay barrier entry are *exactly* the kind of thing Parliament envisaged when it made the legislation.

Which means (with the current wording at least) it would require either amendment to Regulation 110, or for a higher court to decide on its interpretation of Parliament's intention.

Forester1965 said:

Taken on your reading, you're left with a lacuna where someone using their phone to pay at a barrier entry would not be committing an offence yet another who pre-payed using the same barrier would, despite doing the same physical thing. Would Parliament really have meant that?

I'm not disagreeing with your reasoning, merely pointing out that it wouldn't be the first time Parliament has pushed through some poorly worded, vague or out of date legislation.

[119]

What are the chances anyone will actually see and give a st?

[Zeeky]

WrekinCrew said:

The NCP app works like this - arrive at the barrier and scan your QR code.

Even though you're on private property at the barrier, it's still a place "accessible to the public" so I'm not sure if the phone laws apply.

• Here's their view https://www.ncp.co.uk/help-centre/season-tickets/c...

Edited by WrekinCrew on Wednesday 3rd April 14:04

You need to be on a road.

[Aretnap]

SS2. said:

That said, the OP's situation reeks of technology moving a sight faster than the duffers who sit in both the Commons and the Lords..

To be fair to the old duffers, it's secondary legislation, so the actual role of parliament in drafting or scrutinising it is negligible. The fault will lie with some draftsman in the Department for Transport.

[Tommo87]

Sebring440 said:

dundarach said:

Tell them you 'Don't do smart phones'

He probably wants to get into his office car park!

dundarach said:

I be more pissed about having to install yet another flaming app

How would installing an app make you pissed? Sounds like a cheap night out!

Dunders juat likes a moan and would be the first in the queue to complain about having to carry a separate RFID tag.

Especially if he kept forgetting it or took a different car one day.

[WrekinCrew]

Zeeky said:

WrekinCrew said:

The NCP app works like this - arrive at the barrier and scan your QR code.

Even though you're on private property at the barrier, it's still a place "accessible to the public" so I'm not sure if the phone laws apply.

• Here's their view https://www.ncp.co.uk/help-centre/season-tickets/c...

Edited by WrekinCrew on Wednesday 3rd April 14:04

You need to be on a road.

In the OP's case it sounds like the rear of the car is on a road, the front is on private property and he's on the boundary.

[Roofless Toothless]

[agtlaw]

djohnson said:

The landlord of our office is changing the entry process to the carpark. This will mean having an app on my phone, opening this app and scanning it at the barrier (previously this was done via office id card). There’s no way of doing this without holding the phone. Whilst after the barrier it is private, at the point of stopping to open the barrier there’s no doubt the car is (partly at least) on a public road. I’m unconvinced this is technically legal. I’m no lawyer but reading the legislation I can see an exemption for using the phone in a similar way to make a payment, however no payment is involved here, it feels like a leap of assumption to conclude the same principle would necessarily apply to using the phone for this purpose. The landlord argues it’s fine so long as the vehicle is stopped. Getting caught doing this seems unlikely (albeit with vigilante cyclists actively targeting drivers who knows), however I don’t particularly want to be doing something day in and day out which might land me with 6 points, however much of a technicality it is. Am I overthinking this and worrying about nothing? Or do I have a point? Thanks for any replies.

Very unlikely to be prosecuted in the circumstances outlined. The aforementioned would not likely fall into the Regulation 110(5A) remote controlled parking exception introduced in June 2018. However, the same public policy considerations as outlined in Wilkinson's Road Traffic Offences at 8-79 would apply in my opinion.

"This may mean that use of a mobile telephone whilst stationary in a traffic jam will come within the ambit of the offence. However, the purpose of the legislation is one of safety—the distraction caused by the use of a mobile telephone is considerable—and so it is anticipated that prosecution would not follow from use in circumstances where the vehicle is clearly not going to be moving for some time."

[Studio263]

Simpo Two said:

One reason reason I left my old marina was because they put a barrier in

What did you do, get an Ital instead?

[djohnson]

agtlaw said:

Very unlikely to be prosecuted in the circumstances outlined. The aforementioned would not likely fall into the Regulation 110(5A) remote controlled parking exception introduced in June 2018. However, the same public policy considerations as outlined in Wilkinson's Road Traffic Offences at 8-79 would apply in my opinion.

"This may mean that use of a mobile telephone whilst stationary in a traffic jam will come within the ambit of the offence. However, the purpose of the legislation is one of safety—the distraction caused by the use of a mobile telephone is considerable—and so it is anticipated that prosecution would not follow from use in circumstances where the vehicle is clearly not going to be moving for some time."

Thanks AGT.