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  • FIRST POST
    • Sibuna
    • By Sibuna 5th Feb 17, 1:27 PM
    • 6Posts
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    Sibuna
    POLPA Appeal Won (original post title:Apcoa dirty trick?)
    • #1
    • 5th Feb 17, 1:27 PM
    POLPA Appeal Won (original post title:Apcoa dirty trick?) 5th Feb 17 at 1:27 PM
    As registered keeper (with no disclosure of driver identity) I'm currently putting together an initial appeal to Apcoa and a more comprehensive one to POPLA in anticipation of Apcoa's rejection. It relates to an alleged contravention of dropping off/ picking up along the airport road at BHX.

    I've been following the very helpful advice in the newbies sticky etc. however I've noticed something odd about the Apcoa letters:

    The alleged contravention occurred on 05/01/2017.

    The PCN is dated 12/01/2017 and informs that and appeal should be within 28 days from the 'date of this notice'.

    The reminder is dated 31/01/2017 and informs that appeal should be within 14 days from the 'date given' of this letter.

    I understand that under PoFA 2012 Schedule 4, 8(1)(f) appeals must be within 28 days starting the day after the NTK date of issue.

    Seems to me that I have until 09/02/2017 to appeal but if I believe the reminder letter I could think I'd got until 14/02/2017. Could Apcoa be trying to trick people into missing the appeal deadline and does this give grounds for complaint to BPA/DVLA?
    Last edited by Sibuna; 26-03-2017 at 8:09 PM. Reason: new title needed
Page 1
    • Quentin
    • By Quentin 5th Feb 17, 1:36 PM
    • 32,403 Posts
    • 16,500 Thanks
    Quentin
    • #2
    • 5th Feb 17, 1:36 PM
    • #2
    • 5th Feb 17, 1:36 PM
    Yes. Complain.

    But this is only grubby compared with the normal dirty behaviour we see from ppcs!
    • Fruitcake
    • By Fruitcake 5th Feb 17, 5:51 PM
    • 40,232 Posts
    • 80,347 Thanks
    Fruitcake
    • #3
    • 5th Feb 17, 5:51 PM
    • #3
    • 5th Feb 17, 5:51 PM
    Yes, you should complain. Since this is no doubt covered by byelaws, you should also complain that the airport road is not relevant land and therefore CRAPCOA have committed a DPA breach.

    There is some useful information here on this subject.

    http://forums.moneysavingexpert.com/showthread.php?t=5585388
    I married my cousin. I had to...
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    • Sibuna
    • By Sibuna 5th Feb 17, 7:44 PM
    • 6 Posts
    • 9 Thanks
    Sibuna
    • #4
    • 5th Feb 17, 7:44 PM
    • #4
    • 5th Feb 17, 7:44 PM
    Thanks Quentin and Fruitcake for the confirmation. The link to Timothea's DPA breach stuff provides excellent strengthening for the DPA paragraph in Coupon Mad's 1st appeal blue template.
    • Sibuna
    • By Sibuna 9th Mar 17, 11:31 PM
    • 6 Posts
    • 9 Thanks
    Sibuna
    • #5
    • 9th Mar 17, 11:31 PM
    Draft POPLA appeal
    • #5
    • 9th Mar 17, 11:31 PM
    I have now received the first appeal rejection from APCOA and would be grateful for feedback on my draft POPLA appeal submission:

    POPLA Ref ...................
    APCOA Parking PCN no .......................

    A notice to keeper was issued on 12th January 201 and received by me, the registered keeper of ........ in respect of an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at Birmingham Airport on 5th January 2017. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

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


    1) 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.

    2) 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

    3) 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.

    4) 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, your 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 require them to evidence their compliance to POPLA.

    The BPA code of practice also says '20.14 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.

    5) 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.
    POPLA assessor Steve Macallan found in 6062356150 in September 2016, 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.’

    6) 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 Notice to Keeper.

    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 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 5 above.

    7) 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, 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."

    The photographic evidence of the signage supplied by APCOA appears to be located within a car park next to a building and is therefore deficient in demonstrating compliance with the above requirements.
    I contend that in order for a motorist to read and understand the content of the signage they would need to stop to study it. Any attempt to read and understand the signage whilst driving at the prevailing speed limit would compromise their ability to drive safely. It is clearly unreasonable for a motorist to have to breach the terms and conditions of use of the Airport road infrastructure in order to acquaint themselves with those terms and conditions.
    Furthermore, I contend that APCOA’s assertion that no stopping is allowed at any time on a red route is inconsistent with motorists’ obligations under the Highway Code. There are numerous circumstances in which a motorist would be obliged to stop; for example following a road traffic accident or at a pedestrian crossing. The photographic evidence shows that the vehicle in question had stopped at a pedestrian crossing to allow pedestrians to cross the road.
    I submit that in such a circumstance, a driver cannot be held responsible for the spontaneous actions of their passenger acting independently, even less so can the keeper be held responsible.

    8) 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.

    9) 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 even been in use by UKPC, who were banned by the DVLA after it emerged.

    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).

    10) The PCN is issued as a parking event, which did not happen; 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'. Five seconds, I would argue does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.

    I therefore request that POPLA uphold my appeal and cancel this PCN.
    • Sibuna
    • By Sibuna 11th Mar 17, 8:12 AM
    • 6 Posts
    • 9 Thanks
    Sibuna
    • #6
    • 11th Mar 17, 8:12 AM
    • #6
    • 11th Mar 17, 8:12 AM
    To add some further background information to that given in post #1, I understand that the incident occurred when the driver was giving a foreign national colleague (who’s grasp of written English is minimal so could not himself read the content of ant signs) a lift to the airport and was headed to the drop off car park. On the airport approach road the driver was obliged to pull up to stop at a pedestrian crossing where people were crossing the road. Without warning, the passenger jumped out with his bag whilst the car was stopped.

    Just to add that I based the draft appeal POPLA submission in post #5 above on those by Kitty25 and Button_Moon and I am indebted to them and all those good people who advised them.

    I have made some amendments and additions myself to some of the existing sections and I would be most grateful for some views from the forum experts as to whether the submission need any further work before I submit it.

    The APCOA 1st appeal rejection letter was issued on 14/2/17 and it says the POPLA appeal has to be made within 28 days of that letter. Am I right in assuming that the 28 days includes the date of issue, meaning that the last date I can upload my appeal is 13/3/17?
    • Coupon-mad
    • By Coupon-mad 11th Mar 17, 11:28 PM
    • 49,037 Posts
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    Coupon-mad
    • #7
    • 11th Mar 17, 11:28 PM
    • #7
    • 11th Mar 17, 11:28 PM
    A POPLA code will work for just over 30 days (I won't say exactly because human nature means someone will push it!). So 30 days is fine.

    But you may as well get that submitted - upload as a PDF under 'OTHER' only - because unless I've missed seeing any mistaken added wording that says who was driving (and I don't expect you've made that mistake because you have researched it well) that will win.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • nigelbb
    • By nigelbb 12th Mar 17, 9:13 AM
    • 1,924 Posts
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    nigelbb
    • #8
    • 12th Mar 17, 9:13 AM
    • #8
    • 12th Mar 17, 9:13 AM
    I understand that under PoFA 2012 Schedule 4, 8(1)(f) appeals must be within 28 days starting the day after the NTK date of issue.
    Originally posted by Sibuna
    You understand incorrectly. POFA says nothing about appeals.here is no requirement on timescales or even to offer appeals at all. The only mention of appeals in POFA is that if there is an appeal process it must be described on the NTD or NTK.
    • Sibuna
    • By Sibuna 12th Mar 17, 9:37 AM
    • 6 Posts
    • 9 Thanks
    Sibuna
    • #9
    • 12th Mar 17, 9:37 AM
    • #9
    • 12th Mar 17, 9:37 AM
    Thanks Coupon-mad - you haven't missed anything, I've heeded the wealth of helpful advice on this forum and avoided any mention of the unmentionable. I'll get it submitted today.

    Thanks nigelbb - it's been a while since I did my initial research and no idea now where that reference I quoted came from. You're right, I've just done a word search of PoFA Schedule 4 and no mention of appeal.
    • Sibuna
    • By Sibuna 26th Mar 17, 8:05 PM
    • 6 Posts
    • 9 Thanks
    Sibuna
    Received email from Popla to say:

    APCOA Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.


    Many thanks to the forum community for providing such a wealth of information and advice for the benefit of us all.
    • Coupon-mad
    • By Coupon-mad 26th Mar 17, 11:11 PM
    • 49,037 Posts
    • 62,495 Thanks
    Coupon-mad
    No problem - thanks for taking that leap of faith with us and for confirming this works!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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