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Luton Airport PCN - draft POPLA appeal letter
NFFCFAN
Posts: 9 Forumite
Hello, (and F.A.O. Coupon-mad and Redx),
Further to my post in the thread "Luton airport apcoa pcn popla", please see my draft POPLA appeal letter below. This relates to a PCN I received as RK for "dropping off/picking up outside designated area at Luton Airport."
Any feedback/further advice would be much appreciated. I repurposed two previous successful appeals I found in the forums. I have included all the points that I believe apply to my case. I had to cut back on the "failure to meet the requirements of paragraph 9 Schedule 4 of the POFA 2012" because my PCN clearly showed the creditor (APCOA Parking (UK) Ltd) and met the requirements of paragraphs 2(b),(c) and (d). However, I still contend the PCN doesn't comply with paragraph 2(a) - although four still photos were provided covering a 16-second timeframe.
Dear POPLA assessor,
A notice to keeper was issued to me for an alleged contravention within the Airport site, recorded on APCOA's ANPR system. As registered keeper, I am not liable for this PCN and so I wish to appeal on the grounds numbered 1 - 5 as outlined below:
1) APCOA have failed to establish keeper liability
APCOA have failed to fulfil the requirements necessary under statute (the POFA 2012) to allow them to attempt recovery of any charge from the keeper.
Sites designated as Airports by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If APCOA argue otherwise then they must produce the byelaws and maps to show that this part of the Airport is somehow exempt from statutory control. The onus falls upon APCOA to demonstrate this and I put them to strict proof on this point.
However, even if this Operator counters the above point, there is still no keeper liability because the notice to keeper (NTK) is not valid. It fails to meet the requirements of paragraph 9 of Schedule 4 of the POFA 2012. The liability is not based in the law of contract but is created by the statute and the wording is prescriptive and mandatory.
The NTK issued by APCOA appears not to comply with the act as follows:
- Paragraph 2(a) requires APCOA to specify the “period of parking.” A layman's interpretation means this requires a stated time period during which the car was evidenced to be ‘parked.’ A “period of parking” is not evidenced by a photo of a single moment in time when unmanned ANPR cameras captured the presence of a vehicle registration number on a road.
As the NTK is not explicit as regards mandatory wording in the Act, it is not valid.
2) Unclear and unreadable signs; lack of repeater signs for a 'no stopping zone'
If APCOA intend this road to treated by drivers as a clearway then the signs and lines must be compliant with the TRSGD2002 to avoid confusion. Any repeater signs in this area do not face the oncoming traffic, are obscured in places and the words are too small to read from a car. The circumstances which may give rise to a PCN cannot be read and understood without stopping. In breach of Appendix B of the BPA Code of Practice and despite the words of POPLA Lead Adjudicator, Mr Greenslade in the 'No Stopping Zones' section of the POPLA Report 2013, there is a lack of regular repeater signs and nothing about the risk/amount of a PCN can be read by a driver in moving traffic, particularly late in the day or in the early hours or even in adverse weather, because the signs lack prominence at this busy site. The number of recorded cases in the public domain with drivers having no idea that this road is apparently meant to be a clearway, shows that this site is a cash-cow for APCOA and they have had no reason or incentive to make the restriction clear.
3) Lack of standing/authority from landowner
As APCOA are not the owners of this land and as such they cannot form a contract with the driver or Keeper, I wish APCOA to provide me with a full un-redacted legally certified by an independent solicitor as a true copy of the original copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives APCOA the legal standing to neither levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, APCOA have breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.
4) No contract with driver
If a contract is to be formed, upon entering the site a driver must be able to read, understand and agree to the terms and conditions (see Unclear and unreadable signs above). A driver could not be expected to stop in order to read non-compliant located signs as they enter the road. In any case, as APCOA are only an agent working for the owner, mere signs do not help them to form a contract. 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. In this instance, there was no contract formed whatsoever, no consideration was capable of being offered to the driver and no pertinent signs were clearly visible.
5) ANPR photos show no ‘parking’ event
As I am merely the registered keeper, I have no evidence to show me that my car was involved in any ‘period of parking’ at all. Photos of a vehicle clearly not in a car park but on a road, with the images zoomed in on a number plate and taken by an unmanned ANPR camera, are not parking photographs. APCOA cannot show beyond the balance of probabilities that the car was not involved in non-parking related activity - e.g. queuing at a junction or adjusting a seatbelt or slowing briefly to read any signs to locate the car park or exit. All of which are acceptable features of driving carefully along an unfamiliar Airport roadway, with the distractions of pedestrians, other signs, bright lights and flags along parts of the road; even if a vehicle slowed or stopped momentarily then this is not parking. I put APCOA to strict proof of an actual period of parking, not proven merely by remote photos of a vehicle on a road.
In addition, the BPA CoP contains the following obligation in paragraph 21:
“You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”
APCOA fail to operate the system in a reasonable, consistent and transparent manner; I have seen no evidence of signs which inform a driver about ANPR technology in use here, nor what the system is used for. Even if there is a sign with a picture of a camera – and I have no idea due to the lack of information from this operator – this would simply suggest CCTV cameras are on site for safety or crime detection by the Local Authority or Police, which would not be an unreasonable assumption in an Airport. A sign with a camera picture would not be sufficient under the Operator's ICO registration, to meet their duty to inform a driver about the circumstances under which the ANPR images and DVLA data is actually being collected and stored and by whom and for what purpose.
I therefore respectfully request that my appeal is upheld.
Yours faithfully,
xxxxx
Further to my post in the thread "Luton airport apcoa pcn popla", please see my draft POPLA appeal letter below. This relates to a PCN I received as RK for "dropping off/picking up outside designated area at Luton Airport."
Any feedback/further advice would be much appreciated. I repurposed two previous successful appeals I found in the forums. I have included all the points that I believe apply to my case. I had to cut back on the "failure to meet the requirements of paragraph 9 Schedule 4 of the POFA 2012" because my PCN clearly showed the creditor (APCOA Parking (UK) Ltd) and met the requirements of paragraphs 2(b),(c) and (d). However, I still contend the PCN doesn't comply with paragraph 2(a) - although four still photos were provided covering a 16-second timeframe.
Dear POPLA assessor,
A notice to keeper was issued to me for an alleged contravention within the Airport site, recorded on APCOA's ANPR system. As registered keeper, I am not liable for this PCN and so I wish to appeal on the grounds numbered 1 - 5 as outlined below:
1) APCOA have failed to establish keeper liability
APCOA have failed to fulfil the requirements necessary under statute (the POFA 2012) to allow them to attempt recovery of any charge from the keeper.
Sites designated as Airports by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If APCOA argue otherwise then they must produce the byelaws and maps to show that this part of the Airport is somehow exempt from statutory control. The onus falls upon APCOA to demonstrate this and I put them to strict proof on this point.
However, even if this Operator counters the above point, there is still no keeper liability because the notice to keeper (NTK) is not valid. It fails to meet the requirements of paragraph 9 of Schedule 4 of the POFA 2012. The liability is not based in the law of contract but is created by the statute and the wording is prescriptive and mandatory.
The NTK issued by APCOA appears not to comply with the act as follows:
- Paragraph 2(a) requires APCOA to specify the “period of parking.” A layman's interpretation means this requires a stated time period during which the car was evidenced to be ‘parked.’ A “period of parking” is not evidenced by a photo of a single moment in time when unmanned ANPR cameras captured the presence of a vehicle registration number on a road.
As the NTK is not explicit as regards mandatory wording in the Act, it is not valid.
2) Unclear and unreadable signs; lack of repeater signs for a 'no stopping zone'
If APCOA intend this road to treated by drivers as a clearway then the signs and lines must be compliant with the TRSGD2002 to avoid confusion. Any repeater signs in this area do not face the oncoming traffic, are obscured in places and the words are too small to read from a car. The circumstances which may give rise to a PCN cannot be read and understood without stopping. In breach of Appendix B of the BPA Code of Practice and despite the words of POPLA Lead Adjudicator, Mr Greenslade in the 'No Stopping Zones' section of the POPLA Report 2013, there is a lack of regular repeater signs and nothing about the risk/amount of a PCN can be read by a driver in moving traffic, particularly late in the day or in the early hours or even in adverse weather, because the signs lack prominence at this busy site. The number of recorded cases in the public domain with drivers having no idea that this road is apparently meant to be a clearway, shows that this site is a cash-cow for APCOA and they have had no reason or incentive to make the restriction clear.
3) Lack of standing/authority from landowner
As APCOA are not the owners of this land and as such they cannot form a contract with the driver or Keeper, I wish APCOA to provide me with a full un-redacted legally certified by an independent solicitor as a true copy of the original copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives APCOA the legal standing to neither levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, APCOA have breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.
4) No contract with driver
If a contract is to be formed, upon entering the site a driver must be able to read, understand and agree to the terms and conditions (see Unclear and unreadable signs above). A driver could not be expected to stop in order to read non-compliant located signs as they enter the road. In any case, as APCOA are only an agent working for the owner, mere signs do not help them to form a contract. 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. In this instance, there was no contract formed whatsoever, no consideration was capable of being offered to the driver and no pertinent signs were clearly visible.
5) ANPR photos show no ‘parking’ event
As I am merely the registered keeper, I have no evidence to show me that my car was involved in any ‘period of parking’ at all. Photos of a vehicle clearly not in a car park but on a road, with the images zoomed in on a number plate and taken by an unmanned ANPR camera, are not parking photographs. APCOA cannot show beyond the balance of probabilities that the car was not involved in non-parking related activity - e.g. queuing at a junction or adjusting a seatbelt or slowing briefly to read any signs to locate the car park or exit. All of which are acceptable features of driving carefully along an unfamiliar Airport roadway, with the distractions of pedestrians, other signs, bright lights and flags along parts of the road; even if a vehicle slowed or stopped momentarily then this is not parking. I put APCOA to strict proof of an actual period of parking, not proven merely by remote photos of a vehicle on a road.
In addition, the BPA CoP contains the following obligation in paragraph 21:
“You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”
APCOA fail to operate the system in a reasonable, consistent and transparent manner; I have seen no evidence of signs which inform a driver about ANPR technology in use here, nor what the system is used for. Even if there is a sign with a picture of a camera – and I have no idea due to the lack of information from this operator – this would simply suggest CCTV cameras are on site for safety or crime detection by the Local Authority or Police, which would not be an unreasonable assumption in an Airport. A sign with a camera picture would not be sufficient under the Operator's ICO registration, to meet their duty to inform a driver about the circumstances under which the ANPR images and DVLA data is actually being collected and stored and by whom and for what purpose.
I therefore respectfully request that my appeal is upheld.
Yours faithfully,
xxxxx
0
Comments
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add the clause 13 from the BPA CoP too, about grace periods and the 10 minutes to leave if a parking event occurred (which it hasnt)
also study this other Birmingham thread and use any valid pointers too
https://forums.moneysavingexpert.com/discussion/5346667
and
https://forums.moneysavingexpert.com/discussion/5339566
the other thread wasnt their thread, it was a different OP, so they were advised to open a thread of their own, as per the "etiquette" here
from https://forums.moneysavingexpert.com/discussion/53395660 -
Thanks Redx. Before I send off the appeal, please would you/others cast an eye over the additions I've made. The first being a paragraph about "relevant land" on which the vehicle was parked. The second being about the "grace period" - thanks in advance everyone.
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- Paragraph 2(a) also requires APCOA to specify the “relevant land” on which the vehicle was parked. APCOA states this simply as “Luton Airport / Airport Road.” This is not a fully-formed address and fails to specifically identify the alleged location of the supposed parking event and subsequent PCN.
The BPA CoP contains the following obligation in paragraph 13:
“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.”
The timings of the four photos provided by APCOA show a total elapsed time of 16 seconds. This is clearly an unreasonable amount of time for the driver to leave the vehicle, lock the car, locate the sign, decipher the wording then choose whether or not to stay on the land. 16 seconds would certainly be much shorter than an appropriate ‘grace period’ as defined within the BPA CoP. Furthermore, according to the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015, there should be a ten minute grace period before a penalty charge notice can be served, where a vehicle is stationary beyond the permitted parking period in an off street or on street permitted parking place.0 -
Please ask Crabman to merege your theads if you have two. We can't switch between two threads looking for crumbs of info - one case, one thread throughout otherwise it's confusing.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hello again everyone,
My POPLA appeal is progressing and I've now had the evidence back from APCOA, which I need to rebut. I would appreciate some advice on this... should I address each of their responses? I don't think it's possible for me to attach scans so I will just summarise their responses to my appeal (see above)...
1) They have provided further images of the vehicle which they say "clearly show the vehicle dropping off in a non-designated area." In addition to this, they have included nine various daylight photos of their signage ("there are 21 restrictive signage leading up to this area"). My contention with this remains: these signs are impossible to read while moving in a car, especially when it's dark at night.
2) APCOA have failed to establish keeper ability. They say they rejected my initial appeal as "APCOA do not work, issue or seek payment under POFA." I'd appreciate other people's thoughts on this point please.
3) Unclear and unredable signs. They say their signage is "compliant with the BPA code of practice."
4) Lack of standing/authority from landownder. They say they've been issued landowner authority "to enforce on behalf of Luton Airport." They've included a copy of this authority; this is in the form of a letter. Not the legally certified certificate I was asking for. I assume this is how I rebut this point?
5) No contract with driver. They say Luton Airport's situated on private land, and "a driver who enters onto private land does so freelay and in full acceptance of the terms ... by entering and remaining on the site, these terms are accepted." Earlier when rejecting POFA, they said "Luton Airport is situated on Private Land where Airport Bye-laws apply."
I have spotted two further bones of contention in their evidence. One, they state "an appeal was made to APCOA stating the parking charge was unlawful; the driver does not dispute the contravention taking place." BUT, the driver has never been identified, so they cannot possibly say this. Secondly, and later, APCOA state: "By not disclosing the name of the driver on the day in question, the appellant (the registered keeper) is seen to be concealing information which results in perverting the course of justice. Having not provided a named driver, the responsibility therefore remains with the registered keeper."
So not only have they lied, they've then contradicted their lie, and then come up with some nonsense about perverting the course of justice. As this is not a criminal matter, surely that is a load of cr*p?
I look forward to and will be grateful for your responses.0 -
I have spotted two further bones of contention in their evidence. One, they state "an appeal was made to APCOA stating the parking charge was unlawful; the driver does not dispute the contravention taking place." BUT, the driver has never been identified, so they cannot possibly say this.Secondly, and later, APCOA state: "By not disclosing the name of the driver on the day in question, the appellant (the registered keeper) is seen to be concealing information which results in perverting the course of justice. Having not provided a named driver, the responsibility therefore remains with the registered keeper."
Point out the idiocy of this one to Luton Airport and tell them to hire a professional organisation and not rank amateurs.This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0 -
IamEmanresu wrote: »Point out the idiocy of this one to Luton Airport and tell them to hire a professional organisation and not rank amateurs.
Good point, but - they may take up the OP's suggestion and consider PE to be "professional" and hire them!
Isn't the best thing for this Luton Airport mob to stop wasting your time and just ignore them?0 -
If you were being dropped off and were not the driver, then you can't be done as they are not seeking POFA Registered Keeper liability and say so.
Seems simple to me.
0 -
Hello everyone.
Just to let you know, my POPLA appeal ruling has just been delivered... and it was successful! Obviously I'm delighted.
Thank you to everyone who helped with this. For info, my appeal was upheld based on APCOA failing to establish keeper liability. It was noted that I raised further grounds for appeal but these weren't considered as the appeal was already allowed for keeper liability.0 -
Great!
Can you show us the decision wording please and who the Assessor was and the POPLA code now it's over, because others could cite this win for a future POPLA appeal v APCOA. It is now safe to divulge the POPLA code.
Have you posted on 'POPLA Decisions' at the top of the forum with a link to this thread and also showing the decision and mentioning it was v APCOA? More people see it there.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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