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  • FIRST POST
    • billythefish1
    • By billythefish1 7th Apr 17, 3:34 PM
    • 18Posts
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    billythefish1
    APCOA Parking Charge Notice - Swindon Train Station, PCN Received - What are the nex
    • #1
    • 7th Apr 17, 3:34 PM
    APCOA Parking Charge Notice - Swindon Train Station, PCN Received - What are the nex 7th Apr 17 at 3:34 PM
    Dear Valued Members,

    I received in the post today two PCN from Apcoa for not paying for parking at Swindon Train Station. A copy of one of the Notice Letters I have attached. I've read a number of threads on here and Money Saving Expert and I understand that there is a good chance I can successfully appeal both notices by following correct procedures. The problem is that there seems to be a lot of different advice and standard letters to use and I am not sure how/what is the most up to date format/content to use.

    Also, to appeal based on the Railway Land argument do I have to confirm first whether the car park at Swindon Train Station is railway land or is all carparks railway land? Anyway; on the basis that it is, here's the first draft of my letter to appeal to Apcoa/GWR.

    Is some of this information worth including or removing? From memory the signs in Swindon at the parking pay stations are pretty clear. It seems from all the threads that APCOA tend to reject any appeal letters anyway.

    Dear APCOA Parking (UK) Ltd

    Re PCN number: xxxx, Vehicle Registration No. xxxxxx

    I am the keeper of the vehicle and am aware of your alleged 'parking charge' and I challenge this PCN as the keeper of the vehicle.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The driver did not see your unremarkable and obscure signs, are in very small print and the terms are not readable to drivers.

    Please provide photos of the signs that you say were on site, which you contend formed a contract with the driver.

    Please provide all photographs taken of this vehicle and provide proof that the timing of any camera or timer used was synchronised with all other cameras and/or systems & machines.

    Do not send debt collector letters and do not add any costs, which would be a thinly-veiled attempt at 'double recovery'. I will not respond to debt collectors and to involve a third party would be a failure to mitigate your costs as well as deliberate and knowing misuse of my data.

    Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA 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. Please provide evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

    Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

    I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,
Page 1
    • misswoosie
    • By misswoosie 7th Apr 17, 4:37 PM
    • 71 Posts
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    misswoosie
    • #2
    • 7th Apr 17, 4:37 PM
    • #2
    • 7th Apr 17, 4:37 PM
    Hi. I'm not one of the regulars here (yet) but I think your draft letter is for an appeal for a PPC that's an IPC member. As far as I'm aware APCOA are a memeber of the BPA so I think you need to use the format of the appeal letter in blue text below the IPC letter. I'm sure if I'm wrong then someone will correct me, but I hope not as that's the one I used for my recent APCOA appeal letter sent on March 24th. A couple of days ago I received the auto reminder saying they haven't received an appeal and I've misssed the 14 days reduced charge period blah blah blah.
    • Fruitcake
    • By Fruitcake 7th Apr 17, 5:27 PM
    • 39,594 Posts
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    Fruitcake
    • #3
    • 7th Apr 17, 5:27 PM
    • #3
    • 7th Apr 17, 5:27 PM
    Whilst you have not used the standard BPA appeal template from the NEWBIES, as a first stage appeal I think it perfectly OK.

    It mentions byelaws and you haven't revealed the driver's identity, which is good. Well done for that. The only thing I would add is to say that you a require PoPLA code if it is rejected. This isn't actually required but it will make things easier in the long run, and nobody can wriggle out by saying it wasn't a valid appeal because the word appeal was omitted.

    Separate appeals for each PCN. It is up to the scammers to prove that byelaws do not apply, but there is time to determine that before PoPLA. Just make sure you obtain pics of signs and car park entrance as soon as possible, including the station/GWR signs as well as CRAPCOA's signs.
    Last edited by Fruitcake; 09-04-2017 at 9:23 AM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • The Deep
    • By The Deep 7th Apr 17, 5:52 PM
    • 6,669 Posts
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    The Deep
    • #4
    • 7th Apr 17, 5:52 PM
    • #4
    • 7th Apr 17, 5:52 PM
    Determining whether bye laws apply or not is not easy. I have asked FGW three times. At the first two they referred me to Apcoa, and the third time they said they did not know and referred me to the local Council.

    I get the impression that they are aware that the Apcoa Contact Law PCNs are a scam and are desperate not to go there. However, the Station Manager at Tilehurst has told me that the land is owned by RailTrack and leased to the TOC. I am assuming therefore, that unless they prove otherwise, that land is covered by byelaws.

    They are persistent, I have already had three threateners from their poodle DR+, and have in turn threatened them with the BPA, Trading Standards, the DVLA, and my MP.
    Last edited by The Deep; 07-04-2017 at 6:21 PM.
    You never know how far you can go until you go too far.
    • Fruitcake
    • By Fruitcake 7th Apr 17, 6:09 PM
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    Fruitcake
    • #5
    • 7th Apr 17, 6:09 PM
    • #5
    • 7th Apr 17, 6:09 PM
    I agree with The Deep. However sometimes the landowner has their own signs, so the names Railtrack or GWR may appear on the station car park signs, and/or may appear on the CRAPCOA signs. The latter is certainly the case at my Local GWR station wot is further down the line from Swindon.

    The thing to do is state that byelaws apply in your initial appeal, and also as the first PoPLA appeal point if it isn't cancelled, in addition to using all the other appeal points available. It is then up to CRAPCOA to prove the opposite. If they do, then you will probably win on other points anyway, but this site will have gained valuable knowledge about that particular site.
    If CRAPCOA cannot provide proof that byelaws do not apply, then PoPLA should find in favour of the motorist on those grounds, and this site will also have gained valuable information for another appeals.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • billythefish1
    • By billythefish1 7th Apr 17, 9:13 PM
    • 18 Posts
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    billythefish1
    • #6
    • 7th Apr 17, 9:13 PM
    • #6
    • 7th Apr 17, 9:13 PM
    Someone posted this on pepipoo - thoughts everyone?

    I refer to PCN ********
    I have considered the offer to make payment for a PCN laid against myself as the registered keeper of the vehicle concerned.
    A bye-law contravention cannot be laid against the registered keeper of a vehicle, and the issue of a PCN under the Protection of Freedoms Act 2012 also fails to invoke keeper liability for an event taking place on non relevant land, ie an area covered by bye-laws. Bye-laws are applicable to the actual driver of the vehicle and as I was not the driver I have no part to play in this matter so your offer is meaningless to myself.

    As I have declined the offer to make payment to avoid a bye-law case being sent to a magistrates court I invite you now to close this matter, or to take action against the actual driver of the vehicle at that time, should the identity be known to you.

    You now have no further use of my personal details so I demand that you remove my details from your records under S.10 of the Data Protection Act, and inform me of that within 14 days from the date of this letter.

    Further use will be deemed to be a breach of the DPA and an action for damages may taken accordingly.
    Last edited by billythefish1; 07-04-2017 at 9:16 PM. Reason: wording
    • Fruitcake
    • By Fruitcake 7th Apr 17, 10:53 PM
    • 39,594 Posts
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    Fruitcake
    • #7
    • 7th Apr 17, 10:53 PM
    • #7
    • 7th Apr 17, 10:53 PM
    Not correct. In general, byelaws are not applicable to the driver or keeper, but to the owner. It is important therefore that they never find out who that is.

    Otherwise it looks OK, but only mentions a single point. Your initial post was OK as it was, although it could be beefed up with more info about byelaws. Alternatively the BPA template in the NEWBIES would do.

    At this stage all you are after is to engage the PPC within the appeal window, and hook a PoPLA code. Whilst it is possible that CRAPCOA will fold if they see the mention of byelaws, I wouldn't hold my breath. You will however beat them at PoPLA as long as you follow the advice on the NEWBIES.

    So, bung in an initial appeal that doesn't involve too much work (but do mention byelaws), and save the big guns for PoPLA.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • billythefish1
    • By billythefish1 8th Apr 17, 8:37 PM
    • 18 Posts
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    billythefish1
    • #8
    • 8th Apr 17, 8:37 PM
    • #8
    • 8th Apr 17, 8:37 PM
    Thanks for that - so here's my final draft. Also, should I send separate appeals to the two PCNs or can I reference both on the one appeal?

    Dear APCOA Parking (UK) Ltd

    Re PCN number: xxxx, Vehicle Registration No. xxxxxx

    I am the keeper of the vehicle and am aware of your alleged 'parking charge' and I challenge this PCN as the keeper of the vehicle.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The driver did not see your unremarkable and obscure signs, are in very small print and the terms are not readable to drivers.

    Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA 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. Please provide evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

    Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

    I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,
    • HO87
    • By HO87 9th Apr 17, 8:03 AM
    • 4,192 Posts
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    HO87
    • #9
    • 9th Apr 17, 8:03 AM
    • #9
    • 9th Apr 17, 8:03 AM
    Determining whether bye laws apply or not is not easy. I have asked FGW three times. At the first two they referred me to Apcoa, and the third time they said they did not know and referred me to the local Council.
    Originally posted by The Deep
    I'm not sure it is necessarily as difficult as it might at first sight appears. If one was seeking absolute guidance than I suggest that the body to contact is Network Rail (as the successor to Railtrack who in turn replaced the Strategic Rail Authority) not the seemingly relevant TOC i.e. FGW. The boundary between the land that is managed by a TOC as opposed to that managed by NR is sometimes unclear but NR have the ultimate responsibility. The secret is to ask whether a particular car park is a "railway asset" not to ask if the byelaws are in force on it or not. The byelaws apply to all "railway assets" which are broadly defined as:
    (a) any train being used on a network, whether for the purpose of carrying passengers or goods by railway or for any other purpose whatsoever;
    (b) any network;
    (c) any station; or
    (d) any light maintenance depot.

    It also includes rolling stock other than trains.
    The relevant further definition is that of a "station" which is defined as:
    any land or other property which consists of premises used as, or for the purposes of, or otherwise in connection with, a railway passenger station or railway passenger terminal (including any approaches, forecourt, cycle store or car park), whether or not the land or other property is, or the premises are, also used for other purposes.(s.83(1) Railways Act 1993)
    It is hardly unreasonable to conclude that a car park at a railway station which has
    a). Multiple signs that identifies the TOC
    b). Talks of it being a "railway car park" or "station car park" (such as this one does)
    c). As in this case has signage stating "Car Park for Rail Customers Only"
    d). Is immediately adjacent to railway lines (i.e. "network")
    e). When viewed on a map sits within a clearly identified boundary that would have formed Swindon railway station and yards (as it once was)

    Is a "railway asset" within the above meaning.

    In any defence - were APCOA to do so (a relatively rare event) - then I would suggest that they are put to strict proof that the byelaws do not apply. It is for an operator to show that they operate on "relevant land" not for the motorist to disprove it although it is very sensible to do so. The same would apply to an appeal to POPLA.

    This argument has recently been successfully used in a case involving UKPPO.

    I further suggest that the above definition would extend to a former railway car park that might be leased (as opposed to purchased) by a car park operator, such as NCP (Though not Napier as they usually purchase the land they operate on. So those of you thinking about their car parks at Kings Lynn or Fareham - they were both purchased - can sit back down ).
    Last edited by HO87; 09-04-2017 at 8:08 AM.
    My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).

    For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com
    • Fruitcake
    • By Fruitcake 9th Apr 17, 9:25 AM
    • 39,594 Posts
    • 79,187 Thanks
    Fruitcake
    Thanks for that - so here's my final draft. Also, should I send separate appeals to the two PCNs or can I reference both on the one appeal?

    Dear APCOA Parking (UK) Ltd

    Re PCN number: xxxx, Vehicle Registration No. xxxxxx

    I am the keeper of the vehicle and am aware of your alleged 'parking charge' and I challenge this PCN as the keeper of the vehicle.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The driver did not see your unremarkable and obscure signs, are in very small print and the terms are not readable to drivers.

    Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA 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. Please provide evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

    Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

    I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,
    Originally posted by billythefish1
    I already told you in my original reply to you (post 3) that you need separate appeals for each PCN. Apart from that, it looks ready to submit.
    Last edited by Fruitcake; 09-04-2017 at 9:30 AM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • billythefish1
    • By billythefish1 9th Apr 17, 8:04 PM
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    billythefish1
    Thanks Fruitcake - sorry missed that one. Emails going off tonight so will update when I have a response.
    • billythefish1
    • By billythefish1 10th Apr 17, 12:53 PM
    • 18 Posts
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    billythefish1
    Quick question: In terms of appeal most of the arguments seem to relate to inadequate signage and T&Cs but can people advise what is deemed inadequate signage?
    • Umkomaas
    • By Umkomaas 10th Apr 17, 1:04 PM
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    Umkomaas
    Quick question: In terms of appeal most of the arguments seem to relate to inadequate signage and T&Cs but can people advise what is deemed inadequate signage?
    Originally posted by billythefish1
    You compare it with the requirements of the BPA's Code of Practice Paragraph 18 and Annex B. You then pull the signage apart.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • StaffsSW
    • By StaffsSW 10th Apr 17, 1:27 PM
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    StaffsSW
    Not correct. In general, byelaws are not applicable to the driver or keeper, but to the owner. It is important therefore that they never find out who that is.
    Originally posted by Fruitcake
    What defines "Owner"?

    The V5 registration document is quite clear that the registered keeper is not necessarily the owner, so if a vehicle is on finance, wouldn't that make the finance provider the owner?

    Has this ever been tested or pushed?
    <--- Nothing to see here - move along --->
    • Fruitcake
    • By Fruitcake 10th Apr 17, 1:55 PM
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    • 79,187 Thanks
    Fruitcake
    What defines "Owner"?

    The V5 registration document is quite clear that the registered keeper is not necessarily the owner, so if a vehicle is on finance, wouldn't that make the finance provider the owner?

    Has this ever been tested or pushed?
    Originally posted by StaffsSW
    Ownership can be difficult to establish. You only have to look at shell corporations to realise this. As for cars, yes it could be a finance company, or a charity, or a government scheme (Motobility) or a friend, or spouse, or parent, or child. I've bought cars for my kids where I have been the owner but they have been the registered keeper. They didn't become the owner until they paid me back.

    I'm not sure if it has ever been tested, but the important thing is not to identify the owner, and ideally not to identify the driver either. In any case, it's up to the scammers to prove that byelaws don't apply, or can pursue someone where byelaws do apply, and if so, they can prove that they can pursue the keeper where byelaws apply.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • billythefish1
    • By billythefish1 10th May 17, 11:05 PM
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    billythefish1
    HI All,

    So I've had the response from Apcoa Parking and I am hoping you can advise on the best approach of appealing this through Popla - things to point out, points to raise to get this thrown out.

    How do I upload a response as picture here as it won't allow me to insert the link?
    • Umkomaas
    • By Umkomaas 11th May 17, 4:43 AM
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    Umkomaas
    HI All,

    So I've had the response from Apcoa Parking and I am hoping you can advise on the best approach of appealing this through Popla - things to point out, points to raise to get this thrown out.

    How do I upload a response as picture here as it won't allow me to insert the link?
    Originally posted by billythefish1
    All details regarding construction of a POPLA appeal are included in the NEWBIES FAQ sticky, post #4. Also do a forum search on 'APCOA POPLA' and pull up recent POPLA wins against them. Just, plagiarise, via copy and paste as necessary, and let us see your appeal draft. Don't miss the POPLA deadline.

    If you've received a standard APCOA rejection letter, we don't need to see it, so no need to upload here. Or do you have some specific reason why you want it shown?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • billythefish1
    • By billythefish1 15th May 17, 11:17 AM
    • 18 Posts
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    billythefish1
    Hi Umkomaas

    The letter stated "This site is private land subject to the statutory control of the Railway Bye-Laws. Parking Charge Notices are therefore not issue under PoFA". Does this mean anything new?
    • waamo
    • By waamo 15th May 17, 11:29 AM
    • 1,673 Posts
    • 1,973 Thanks
    waamo
    That means they can't rely on keeper liability. They can only chase the driver and not transfer liability to the keeper as POFA allows them to do.

    If you haven't named the driver and appealed as the keeper then APCOA have a problem.

    The fact they are chasing the keeper and have not identified the driver should be included in a POFA appeal.
    This space for hire.
    • billythefish1
    • By billythefish1 19th May 17, 7:35 PM
    • 18 Posts
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    billythefish1
    HI there, here's my draft response (Part 1)- as usual I welcome your thoughts, comments and amends:

    Dear POPLA,

    Re: POPLA NO:
    Re: PCN No. xxxx


    I am the Registered Keeper (“My” or “I”) and this is my appeal, based on the points below.

    1) APCOA not using POFA 2012
    2) Railway Land Is Not ‘Relevant Land’
    3) Amount demanded is a penalty
    4) No keeper liability
    5) Appellant not being the individual liable
    6) Non-compliant signage, forming no contract with driver
    7) Breach of DVLA’s KADOE contract with APCOA
    8) Lack of standing / authority from landowner!

    1) APCOA not using POFA 2012

    APCOA’s rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under railway byelaws. I reject this and put to them strictly to prove on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

    I also refer to Freedom of Information Act Request – F0013227 whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.

    Therefore, any breach of byelaws is a criminal offence, not a breach of any contract APCOA may say the driver entered in to. If the driver is found to have breached byelaws 14 (1-3), the resulting penalty is paid to the government, not to APCOA or the railway. Further, byelaw offences are decided by the court, not by APCOA – the parking company or railway can only allege the breach.

    2) Railway Land Is Not ‘Relevant Land’

    Under Schedule 4 of PoFA 2012, section 1, it states that:

    “(1) This schedule applies where –
    (a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

    Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA 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 ask APCOA for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under POFA does not apply, and therefore APCOA are unable to pursue the registered keeper in lieu of the driver’s details – see point 1 above as well.

    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.’

    3) Amount demanded is a penalty and is punitive

    Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015.

    APCOA’s letter of rejection against My appeal, and their signage, both confirm that this charge represents liquidated damages for breach and the predominant purpose of the charge at this extravagantly high level is as a deterrent.

    A parking charge must be a pre-estimate of likely losses flowing from an alleged breach in order to be potentially enforceable. APCOA cannot demonstrate any initial loss caused by the parking event. They would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.

    Nor is the charge 'commercially justified'. If APCOA cites 'ParkingEye v Beavis & Wardley' it's irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''In each case that I have seen from the higher courts...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach...It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

    I fully expect APCOA will send POPLA a generic statement showing duplicated layers of staff time, including unnecessary checks and balances. It will no doubt follow the now rather well-trodden path of trotting out the unsubstantiated and incredible assertion that a full three hours of management time 'double checking' the work of others, goes into each and every PCN (whether appealed or not!). Where a large percentage of the 'GPEOL calculation' comprises staff costs, they must be able to justify those heads as relating to every typical PCN. And yet, only 2% of PCNs get to POPLA stage, so clearly even if a manager did double check those rare cases which go to POPLA, only 2% of those man hours could be included in a genuine pre-estimate of loss when calculated in advance. If the driver had paid this PCN between day 15 and day 29 and had never appealed it, APCOA would need to be able to justify the full charge as a GPEOL and their calculation could not include the entire count of man-hours allegedly spent on the odd rare case appealed to POPLA.

    Like other operators, it is in the public domain that APCOA have recently jumped on the bandwagon and manufactured a newly re-written ‘loss’ statement. This is surprisingly similar to that used by PPS (after PPS had won a couple of anomalous POPLA decisions). This allegedly plagiarised calculation is now common to several operators and POPLA has seen it and dismissed it before. A generic 'model loss statement' cannot possibly show any regard to calculating before the event, a genuine pre-estimate of the likely loss, which might typically flow from a parking event. I contend APCOA's calculation is merely a conveniently totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss.

    As such, POPLA should I hope, see through it just as Ricky Powell did in 6861754004 (re PPS, the originators of the generic calculation APCOA now use):

    ''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

    I contend that APCOA's calculation (even if it is a more credible effort than those recently presented) must fail as it has been re-written recently and is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any re-write by APCOA would be disingenuous and not acceptable, according to the words of Mr Greenslade: “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

    I put APCOA to strict proof of the date when the GPEOL was decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence, which shows how/when this PCN sum, was decided in advance, specifically for this client in this car park and showing the likely losses caused by this alleged contravention. 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) No keeper liability

    Having re-checked the date on the Notice to Keeper issued by APCOA, the driver is not known in this case. POFA 2012 Schedule 4, Paragraph 9, requires that, in order to make use of the provision to pursue the registered keeper, APCOA must send a Notice to Keeper within 14 days of the alleged contravention. The alleged contravention happened at Swindon Main Car Park railway station on 14th March 2017. The Notice to Keeper was issued on 4th April 2017 and therefore presumed to have arrived on 6th April 2017, which is 24 days after the alleged contravention. APCOA Parking (UK) Ltd has therefore failed to issue a Notice to Keeper in the required timeframe, and therefore I cannot be held liable in this instance for the alleged debt of the driver.

    (5) Appellant not being the individual liable

    APCOA 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). 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. Any person(s), with the consent of the registered keeper, may drive a vehicle as long as the driver is insured.

    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 the Registered Keeper), 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.

    Not being the owner of the vehicle, under the Railway byelaws the registered keeper of the vehicle cannot assumed to be the owner anymore than they can assumed to be the driver.

    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 APCOA 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 APCOA, 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 above.
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