APCOA appeal if accidental error is ours?

chica0208

Thanks Coupon-mad, much appreciated. I've done a search as you suggest but can't find anything that seems really relevant from 2016 (in addition to what I've already seen, which is a lot! - most of which I've already based my appeal on). Can't find anything explicitly about byelaws not being able to hold a keeper liable, but have added various legislation into my letter to give it some oomf :-)

Any further suggestions? Thank you!


Dear Sirs,

Re: PCN No. xxxx

I am the registered keeper and this is my appeal, based on the points below.



1) Railway Land Is Not ‘Relevant Land’

2) No keeper liability

3) Non-compliant signage, forming no contract with driver

4) Lack of standing / authority from landowner



1) 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 the Operator 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.





2) 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 Bristol Parkway railway station on 19th February 2016. The Notice to Keeper was issued on 14th March 2016 and therefore presumed to have arrived on 16th March 2016, which is 26 days after the alleged contravention. APCOA Parking (UK) Ltd has therefore failed to issue a Notice to Keeper in the required timeframe, and therefore the registered keeper cannot be held liable in this instance for the alleged debt of the driver.



3) Non-compliant signage, forming no contract with driver



The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required. The BPA Code of Practice states under appendix B, that entrance signage: “must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”



For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park, and furthermore a Notice is not imported into the contract unless brought home “so prominently that the party ‘must’ have known of it” and agreed terms. I contend that this is not the case, and question the fact that the driver saw any sign specifying the amount of the ‘fine’ that would be due, and so there was no consideration or acceptance and no contract agreed between the parties. The sign upon entering Bristol Parkway railway station car park does not even mention the amount of the parking charge at all, which is in breach of 2(3) of schedule 4 of the POFA and contrary to the BPA code of practice. Upon inspection of another sign elsewhere in the car park, the terms of the ‘fine’ are in very small typeface which therefore means that this sign is not clear or prominent enough to form any contract with a driver before parking. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.



4) Lack of standing / authority from landowner


Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states: “The written authorisation must also set out:

a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d. who has the responsibility for putting up and maintaining signs

e. the definition of the services provided by each party to the agreement.''

I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a TOC gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay APCOA (not that a keeper can be liable anyway on non-relevant land and APCOA cannot enforce byelaws themselves, only the Train Operating Company (TOC) or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). APCOA have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.

I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put APCOA to strict proof of compliance with all of the above requirements.



I therefore respectfully request that my appeal is upheld and the charge is dismissed.



Yours sincerely,

Fruitcake

You could quote the PoPLA numbers of the recent successes based on byelaws and briefly quote the reason for allowing those appeals, plus the names of the PoPLA assessors who upheld them.

Coupon-mad

I can't clearly see a section about 'no contravention of bylaws' as suggested? The thread you were searching for had exactly that as point #1.

chica0208

Hi everyone,

Just an update, both our appeals have been successful! Although for entirely different reasons (as they had different assessors) which is funny as I submitted identical letters for both POPLA codes! I have posted both full results on the main "POPLA Decisions" board.

Thanks all for your help! :-) Definitely a weight off my mind, in the end I quite enjoyed the process, lol!! Up yours APCOA :-D