APCOA Luton Airport Parking Charge Notice - POPLA appeal

Theseeker · 11 June 2017 at 12:02PM

I am in the process of writing the appeal to POPLA and have already consulted your Newbies thread, which has helped me tremendously - Thank you :-). But I still have few additional questions that I need help with. POPLA from states:

Grounds for appeal and increasing your chances of a successful appeal
You should find that your grounds for appealing your parking charge fit into one or more of the categories supplied. You will also be given the opportunity to add more information in support of your appeal if required. Simply tick the grounds for appeal that apply to you.

Should I tick point 6 Other - you will need to provide reasons and evidence as to why you are appealing
or chose other in point 2 - I was not improperly parked - as the car was not parked but stopped for 4 seconds

I will write my own appeal and attach is as PDF as you suggested, but am not sure how to deal with the form.
My situation is quite peculiar as the driver has actually used and paid for the pick/drop off zone - so no advantage was gained from stopping. The reason the car stopped was to let me out as I was feeling sick in the traffic and needed some air. We did not notice the signs as it was dark and raining, there were road works everywhere. They are completely changing the layout and it is really confusing.
As the parking fee was paid we appealed to APCOA asking them to check their cameras at the drop off point , confirm that the fee was paid and realise there was no offence.
They replied with some outdated standard letter saying that:

Having carefully considered the evidence provided by you , we must advise your appeal has been unsuccessful on this occasion.
You were issued a notice having received an allegation of contravention at Luton Airport. Having investigated further, we have found that your vehicle was pictured in breach of the above terms set by Luton Airport, dropping off outside a designated area, having failed to enter the designated pickup and drop off zone or short term car park.(This is obviously not true the driver has done that and paid the £3 fee)
All restricted areas are signposted and clearly state that no stopping is allowed at any time to drop off, pick up or for any other reason. CCTV and number plate recognition is in operation. Anyone in contravention of this restriction will be liable for a parking charge notice of up to £80.00. There is a £2.50 Drop off Zone in place at Luton Airport (it must be an old letter template as they currently charge £3.00 for 10 minutes) This was introduced to ease traffic congestion at the terminal. We do however offer free parking at the Mid Term car park for up to 30 minutes.
Restrictions in place at Luton Airport do not allow passengers to enter or exit the vehicle when on the approach roads or roundabout: even in the event of a forced stop due to traffic. This rule has been enforced to ensure the safety for pedestrians and drivers around Luton Airport, as well as to maintaining the traffic flow.

picture of the No stopping sign inserted

4 pictures of the car 4 second apart first showing a person (obscured) standing next to the vehicle.

Whilst we appreciate the points mentioned in your letter (They have most likely never read it), however they do not justify the cancellation of the notice, As a driver (never told them who the driver was - only confirmed the name of the registered keeper) it is your responsibility to make sure you follow the instruction on the signage.
As your vehicle was parked(can 4 second stop constitute parking?) in contravention of the terms and conditions of the car park we are satisfied that the notice was correctly issued in accordance with the BPA code of practice, and are therefore not able to waiver the charge on this occasion.

Theseeker · 11 June 2017 at 12:08PM

Should we tell POPLA that the driver had to stop as the passenger was unwell, or just respond like in your template + mention the fact that the fee was paid? I have seen here that mitigating circumstances are seldom considered, would really appreciate your advice.

Redx · 11 June 2017 at 12:17PM

post your draft on here after reading other appeals for BHX and Luton over the last 12 months

do not include mitigation, just legal arguments

when its approved , choose OTHER and attach your pdf to the tiny BIN icon

paulstevens64 · 11 June 2017 at 12:17PM

Hi. If you search the forum for APCOA threads you will find the answers that you need.

The key with "Airport" tickets, is that they are "not relevant land" and are under byelaws. (all this will make sense when you have read a few APCOA threads).

Your appeal will centre on: Byelaws, not relevant land, Owner not identified, driver not identified, POFA not applicable, then you can add in grace periods, proof of contract from land owner etc. You will find all of these points in previous successful APCOA POPLA appeals.

As Coupon Mad (our guru!) would say -easy win!!

Good luck.

Theseeker · 11 June 2017 at 12:27PM

Thank you I will definitely post my reply here before submitting it to POPLA, I have already looked at all the points re. relevant land and driver not identified. What I REALLY would like to stress to POPLA is that APCOA did get their parking payment. In fact the driver had to go round twice and paid twice as the people we were picking up did not make it to the pick up point in time. They just didn't bother to check their cameras (unfortunately the payment was in cash). Is there something I could add about no possible advantage being gained?

Redx · 11 June 2017 at 2:32PM

I wouldnt bother because I think that if you check the POPLA website they dont care if a ticket was paid for or not (have you checked their site ?)

it does say this though

You should attach or enclose any evidence that you believe supports your case. For example:

Pay and display voucher (if you say it was displayed and had not expired)

so only mention it and attach it if you have proof of payment , adding a paragraph that THE DRIVER did pay and the proof of payment is attached

at no time infer who was driving (or who the owner is) - the appeal is being made as KEEPER

IF THE SIGNAGE IS INCORRECT , GO TO TOWN ON THAT, ALWAYS INCLUDE POOR OR INADEQUATE OR INCORRECT SIGNAGE AS PART OF ANY POPLA APPEAL , WITH PROOF IF YOU HAVE PHOTOS ETC TO SUPPORT YOUR CASE

your case is like all the others , about legal arguments, not about who did what (or didnt)

the fact that bylaws apply and the airport are not taking anyone to the magistrates court (6 months for them to do this) is the crux of the matter here

APCOA cannot act on bylaws issues and that will be the main basis of the popla appeal

Theseeker · 11 June 2017 at 3:40PM

What is the difference between the owner and the registered keeper?

Umkomaas · 11 June 2017 at 5:08PM

Theseeker wrote: »

What is the difference between the owner and the registered keeper?

The owner isn't necessarily the registered keeper, and the registered keeper isn't necessarily the owner.

A spouse can purchase the car in his/her name (name on the sales invoice and thereby 'owning' the car) and provide it as a gift to their other half, the o/h then registering the car in their name with the DVLA.

Redx · 11 June 2017 at 5:12PM

Theseeker wrote: »

What is the difference between the owner and the registered keeper?

there may be none at all, but that is their dilemma not yours

ownership of a vehicle may be complicated and is yours to know and them to find out, which is why you dont tell them

for example, supposing the vehicle was on hire purchase, then the owner is the bank , not the person driving

so it could be the following for example

BANK = OWNER
HUSBAND = REGISTERED KEEPER (with the DVLA) + DRIVER
WIFE = KEEPER + DRIVER
SON = KEEPER + DRIVER
DAUGHTER = KEEPER + DRIVER

another scenario could be

HUSBAND = OWNER
HUSBAND = KEEPER
HUSBAND = DRIVER

so in example 2 they are all one and the same

so the chain is not yours to divulge because you dont make it easy for the claimant by giving out a statement dropping people in it

its like a "no comment" interview

IF THE BYLAWS MAKE THE OWNER LIABLE, SOMETIMES THIS IS THE BANK OR HIRE COMPANY (STRANGE EH?)

the alternative is that the law may feel that the person who did the "error" is liable for it, so that is usually the driver and so if the driver is divulged then it means the claimant is more likely to succeed

but as I said , bylaws apply on airport land and so the airport (not APCOA) should actually take the correct person to magistrates court , within 6 months

yet this never happens at airports or railway stations, because they try to sc@m the public into think that parking offences can occur on roads and they also think a private parking company can pass themselves of as an "authority"

my advice ?

study the topic until your brain hurts , like ours does

which is why we are saying that in this case its all about the legalities and not about "what happened"

POPLA are likey to throw it out because bylaws apply, or more likely APCOA will tell POPLA they are not contesting your well drafted appeal based on others on here

the end result is that you want a cancellation , that is what matters, not you being irked by what happened on the day because you feel it is wrong and want to be vindicated

now go and "seek" a few recent (2017) BHX APCOA POPLA appeals , read them , see what happened (usually apcoa throw in the towel) - read the appeal points and think to yourself you could not write one yourself from scratch that would be the same (so dont)

Theseeker · 11 June 2017 at 9:40PM

I have shamelessly copied your work! Do you think this will do? Please let me know if you think that I should delete or add something. THANK YOU SO MUCH FOR ALL YOUR ADVICE :-)

POPLA Ref: XXX
APCOA Parking PCN no: XXX

A notice to keeper was issued on the X of May 2017 and received by me the Registered Keeper of vehicle registration number: XX on X of May 2017, for an alleged contravention of "Dropping off or picking up outside designated areas at London Luton Airport Central Terminal Area"
As the registered keeper I ask you to consider and uphold my appeal for the following reasons:

1) APCOA did not give my appeal to them due consideration.
2) APCOA not using POFA 2012
3) Airport Act 1986
4) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
5) Reasonable cause for requesting keeper details from DVLA
6) Not relevant Land under POFA 2012 - no registered keeper liability (Steve Macallan POPLA case ref no: 6062356150)
7) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (Carly Law - POPLA case ref no: 6061796103)
8) Misleading and unclear signage exacerbated by the extensive roadworks
9) No landowner contract, nor legal standing to form contracts or charge drivers
10) Amount demanded is a penalty
11) Photo evidence appears doctored
10) No Grace Period Given (Clause #13 BPA Code of Practice)

1) APCOA did not give my appeal to them due consideration.
I do not believe that anyone from APCOA has looked into my appeal submitted to them on the X of May 2017, instead I was sent a standardised "appeal declined response letter" which lacks consistency, is full of mistakes and contains statements that contradict each other. The first claims that the alleged offence was "dropping off outside a designated area" and the second that the "vehicle was parked in contravention of the terms and conditions of the car park"

Frankly I do not understand what the alleged contravention is supposed to have been. Furthermore the letter states that "vehicle failed to enter the designated pickup and drop off zone"- this statement is untrue and could be easily verified by examining the camera evidence. The car first entered the "Pick Up Zone" around the time of the alleged offense (around 00.00) and a payment of £3.00 was made. The passengers who were to be picked up from the airport were not yet present, so the driver exited the airport and came back to the "Pick Up Zone" around 20 minutes later. This time the passengers were picked up and another payment of £3.00 was made.
Automatic number plate recognition cameras are operated at the entrance and the exit of the "Pick Up Zone". I requested that APCOA consult camera evidence to confirm that a vehicle registration number: XXX of which I am the registered keeper, entered and left the "Pick-up Zone" twice on the day in question and that a payment of £3.00 was made on each occasion, but they have failed to do so - I consider it unacceptable.
Furthermore, their appeal response letter wrongly stated that "there is a £2.50 Drop off Zone at the Luton Airport" - this is untrue as the price for parking in the "Pick Up Zone/Drop off Zone" is £3.00 for the first 10 minutes and £1 per minute thereafter.
(Please see the attachments 1 and 2 for further information)

2) APCOA not using POFA 2012
From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport byelaws. I reject this and put them strictly to proof on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

3) Airport Act 1986
Airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments.
Airport Act 1986
65 Control of road traffic at designated airports
(1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.

Both the Airport Act and Airport byelaws say that byelaws only apply to roads to which road traffic enactments do not apply

4) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
If APCOA want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and APCOA have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, their "Notice to Keeper" must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that APCOA have complied with these BPA Code requirements for ANPR issued tickets, so I require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on the X of April 2017, and the notice to keeper was received 22 days later on the X of May 2017.

5) Reasonable cause for requesting keeper details from DVLA
The BPA code of practice point 20.14 says: - when you serve a "Notice to Keeper", you must also include information telling the keeper the "reasonable cause you had for asking the DVLA for their details." The PCN does not provide this information - this does not comply with the BPA code point 20.14.

6) Not relevant Land under POFA 2012 - no registered keeper liability (Steve Macallan POPLA case ref no: 6062356150)
The driver has not been identified, yet APCOA are claiming POFA 2012 registered keeper liability for the charge. Airport land is not "relevant land" as it is already covered by statutory bylaws and so is specifically excluded from "keeper liability" under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper, I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.
In September 2016 POPLA assessor Steve Macallan found in case no: 6062356150, that "land under statutory control cannot be considered "relevant land" for the purposes of POFA 2012. As the site is not located on "relevant land", the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal."

7) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (Carly Law - POPLA case ref no: 6061796103)
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.

Where a charge is aimed only at a driver, then of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in case no. 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." The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 6 above.

8) Misleading and unclear signage exacerbated by the extensive roadworks
The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the Airport road infrastructure and signs are clearly displayed'. It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly could not be read without stopping especially in the dark, and therefore do not comply with the BPA code of practice. APCOA are required to show evidence to the contrary.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."
Furthermore at the time of the alleged contravention meteorological conditions in the Luton area were very bad: it was dark with heavy rainfall and reduced visibility. (Please see the pictures provided by APCOA on their PCN - attachment 3)
Extensive roadworks have been taking place at the Luton Airport for many months now which contributes to the overall airport chaos and confusion. The combination of unlit, unreadable, unclear signage and roadworks "clutter" (redirections, barriers, cones, diversions etc.) must prove overwhelming for any driver. I fly from Luton on regular basis and usually take a taxi to the airport. Even the taxi drivers who visit the airport on almost daily basis complain about the mayhem caused by the poor signage, constant changes, roadworks, heavy traffic etc.

9) No landowner contract, nor legal standing to form contracts or charge drivers
I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give APCOA Parking Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, APCOA Parking Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require APCOA Parking Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that APCOA Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles APCOA Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to APCOA Parking Ltd to prove otherwise, so I require that APCOA Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between APCOA Parking Ltd and the owner/occupier, containing nothing that APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

10) Amount demanded is a penalty
Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.
The charge given is not a genuine pre-estimate of loss as no losses have occurred; therefore this is unfair as stated in the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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 contract, to the detriment of the consumer" and 5(2) states: "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 substance of the term." The amount claimed is excessive, punitive and is being enforced as a penalty for allegedly stopping.

11) Photo evidence appears doctored
I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper right hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has been in use by Uxbridge-based firm UKPC, who were banned by the DVLA after it emerged. (Please see can't post links for further information).
I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).
Furthermore the pictures on the original PCN issued on 17th of May 2017 are grey in colour whereas, the ones on "the appeal declined response letter" seem digitally enhanced with a brownish/gloden glow. This is contrary to (DOES ANYONE KNOW PROPER WORDING AND WHICH REGULATION)which states that the photographs should not be altered in any way.

12) No Grace Period Given (Clause #13 BPA Code of Practice)
12) 10) As per section 13 of the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. 90 seconds, I would argue does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.

I request that POPLA uphold my appeal and cancel this PCN.

Redx · 11 June 2017 at 9:48PM

are the roadworks still there for point 8)

I would start by saying that this is a bylaws issue and so the case should be struck out by POPLA who do not rule on non-relevant land issues

or something similar (even though its in the appeal itself) , even if it starts in your opening statement

APCOA Luton Airport Parking Charge Notice - POPLA appeal

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free