PCN for Dropping Off outside designated area at Luton Airport

pmlist

Hi, as a newbie I have carefully read the great advice given so hope I am complying with best practice.

I recently received a notice as registered keeper for dropping off outside the designated parking area at Luton Airport. I used the templates posted on this site and created an appeal and sent it to APCOA. They rejected it by letter so I drafted and submitted a request to POPLA to appeal my case. I have just received an email communication from POPLA stating that I have 7 days to provide comments on the file after which they will not be considered.

I am unsure whether to add more information and reinforce points such as signage not clear, not obvious that a contract was being entered into, driver not identified etc or just leave it as it is.

My POPLA appeal was very similar wording to what I sent to APCOA and I now wonder if I should have created something which varied more from the original text.

Comments and advice very welcome.

Please find below the text of the various communications. Obviously I have not been able to include the information that I received in hard copy or image form.



Initial appeal to APCOA

APCOA Parking PCN No. XXXXXXXX

A notice to the registered Keeper was issued on Xth September 2016 and received by me, the registered keeper of XX10XXX on XXth September 2016 for an alleged contravention of “Dropping off / picking up outside of a designated parking area" on XXth August 2016 at 06:XX:00 at Luton Airport. I am writing to you as the registered keeper and wish to 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
6) Misleading and unclear signage
7) No landowner contract nor legal standing to form contracts or charge drivers
8) No Grace Period Given (Clause #13 BPA Code of Practice)

1) It appears that you are attempting to claim that the charge is liable to you under airport byelaws. I reject this and would like you to advise which byelaw you claim is broken and why this would result in an obligation to pay you.

2) Airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments.
Airport Act1986
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) The amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is Parking Eye 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 you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you 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 you have complied with these BPA Code requirements for ANPR issued tickets so require you to evidence your compliance to me. Furthermore, the notice to keeper was not received within the maximum 14-day period from the date of the alleged breach. Specifically, the alleged breach occurred on XXth August, and the notice to keeper was received 30 days later on XXth September 2016.
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. Please provide proof otherwise if you disagree with this point and show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.

6) The alleged contravention, according to you, 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. Please show evidence to the contrary if you disagree.

7) 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 you, APCOA Parking Ltd, to demonstrate your legal ownership of the land.
I contend that you, APCOA Parking Ltd, are only an agent working for the owner and your signs do not help you 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 you have no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to you, APCOA Parking Ltd, to prove otherwise so I require that you produce a copy of your contract with the owner/occupier for scrutiny by a POPLA adjudicator if it progresses to that stage. 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.

8) As per section 13 of the BPA Code of Practice: 'You should allow the driver a reasonable 'grace period' in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. 90 seconds, I would argue does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.

I therefore request that you cancel this PCN.

Yours faithfully

*******************************************

POPLA Appeal

POPLA Verification Reference Number XXXXXXXXXX

APCOA Parking PCN No. XXXXXXXXXX


A notice to the registered Keeper was issued on Xth September 2016 and received by me, the registered keeper of XX10XXX on XXth September 2016 for an alleged contravention of “Dropping off / picking up outside of a designated parking area" on XXth August 2016 at 06:XX:00 at Luton Airport. I am writing to you as the registered keeper and would be grateful if you would 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
6) Misleading and unclear signage
7) No landowner contract nor legal standing to form contracts or charge drivers
8) No Grace Period Given (Clause #13 BPA Code of Practice)

1) It appears that APCOA are attempting to claim that the charge is liable to them under airport byelaws. I reject this and would like them to advise which byelaw they claim was broken and why this would result in an obligation to pay them.

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) The 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 have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the 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 they have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to me. Furthermore, the notice to keeper was not received within the maximum 14-day period from the date of the alleged breach. Specifically, the alleged breach occurred on 11th August, and the notice to keeper was received 30 days later on 10th September 2016.
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 asked them in my appeal to provide proof otherwise if they disagreed with this point and show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.

6) 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. I believe APCOA need to show evidence to the contrary if they disagree.

7) 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.
I contend that APCOA Parking Ltd are only an agent working for the owner and their signs do not 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 they have 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 they produce a copy of their contract with the owner/occupier for scrutiny by a POPLA adjudicator. 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.

8) 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 for example to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. 90 seconds, I would argue does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.

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

Yours faithfully

*****************************************************************

APCOA Reply

Statement and other evidence.

Additional CCTV footage is available should it be required.

This notice was issued for “Dropping off / Picking up outside of a designated parking area”.

The onsite terms and conditions clearly state:
The Images provided clearly show the driver dropping off a passenger on the roundabout of the approach road; in a non-designated area.

This area is not an authorised area to stop and pick up or drop off passengers, as per the restrictive signage present. There are 21 restrictive signage leading up to this area, stating that no stopping is allowed to pick up or drop off, and that CCTV and number plate recognition is in operation, with an enforcement charge of £80.00.

Signage can be seen within the images provided, showing direction to the authorised areas to park.
Directional signage is in place upon entry to, within this area and throughout the airport; advising drivers where they can stop and park. Information is further available on Luton Airport’s website. Directional signage, road markings and clear restrictive signage can be seen in the images provided.
This driver entered the Airport road with the opportunity to proceed to the pick-up and drop off point, or to the short stay car park. The driver failed to do so, and instead parked on the roundabout of the approach road, allowing the passenger to exit the vehicle, where parking restrictions are in place. There was no traffic or obstructions to prevent the driver from entering the authorised parking area.
An appeal was made to APCOA which did not dispute the contravention occurring. The appellant writes as the registered Keeper and has not transferred liability having been given the option.
The images provided and CCTV footage held shows a clear image of the driver should liability be pursued further.

The appellant wrote to APCOA on the following grounds:
1) APCOA not using POFA 2012

Correct, APCOA do not work, issue, or seek payment under POFA, as Luton Airport is situated on Private land covered by Bye-laws

2) Amount demanded is a penalty

The recent Supreme Court decision in the case of Beavis -V-Parking Eye [2015] dealt with two key points. These were, firstly whether a Parking Charge for contravention of parking conditions is enforceable at common law or amounts to a penalty; and secondly whether it is unfair and therefore unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999.
This decision has provided clarity on the use of contract law for parking on private land. It supports the view of both the Court of Appeal judges in April 2015, and of Judge Moloney at first instance that the charge is permissible if it provides an effective means to deter those who use a car park from ignoring the Parking Conditions. The judgement also confirmed that any such charge must be reasonable and that the terms and conditions must be clearly visible to and legible by those using the car park.
In setting the level of the charge, the Supreme Court specifically mentioned the British Parking Association’s code of practise and confirmed that this is a fair model. APCOA are an approved Operator of the British Parking Association and complies with their Code of Conduct, including the provisions relating to the amount of such parking charges.
APCOA therefore believes that the parking charge of £48 reduced to £80 if paid within 14 days is fair and reasonable. This sum has been approved and agreed by the landowner.

3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012

Correct, APCOA do not work, issue, or seek payment under POFA, as Luton Airport is situated on Private land covered by Bye-laws

4) Not relevant Land under POFA 2012; no registered keeper liability

Luton Airport is covered by Bye-laws. Within the particular area in question, the road traffic enactments do not apply; and the bye-laws state:

Image inserted

Having been given the opportunity to provide driver’s details, this appellant had failed to do so. To be in breach of the Bye-laws of a site is a criminal offence which will be directed to the Registered Keeper to whom we issued the PCN, in the first instance.

5) Misleading and unclear signage

All signage displayed at this site is clear, lit or of a reflective nature and displayed in line with the BPAs guidelines; of whom APCOA are an approved Operator. To make an appeal on these grounds, it is reasonable to place the appellant there on the day on the contravention.

6) No landowner contract nor legal standing to form contracts or charge drivers

APCOA can confirm that this statement is incorrect. Please find a copy of our letter of authority attached.

7) No Grace Period Given (Clause #13 BPA Code of Practice)

A grace period is offered to all drivers to allow them to acknowledge and read the signs; and to decide if they will stay or go. Having viewed the CCTV footage, this driver failed to acknowledge any of the signs displayed and decided to stay and remained within the un-authorised area to drop off a passenger.
20+ restrictive signs are placed in approach to this area; and authorised car parks are sign posted and road marked.

The driver now appealed to POPLA, and again does not dispute the contravention occurring. There are no additional grounds of appeal given.

For all the reason given above, APCOA feel that this notice was issued correctly and should therefore stand.

A driver, who enters onto private land, does so freely and in full acceptance of the terms of parking clearly displayed on the signage on site, and upon the Airport’s website.

Signage at this site is adequate and clearly displayed, in accordance to the BPA guideline, of whom APCOA are and approved operator.

It is the driver’s responsibility to familiarise themselves with the terms of this site and to advise their passengers accordingly as the driver will be held liable.

Coupon-mad

Have they shown 20+ signs in their evidence, or just said there were 20+ signs?

What does the byelaws section say about liability? Driver? Owner?

pmlist

They have shown multiple photographs of signs and marked their locations on a map.
The bye laws section seems to refer to the driver, e.g. '3.6 No person, other than an authorised person acting in the course of his duty shall wait in, leave or park a vehicle (c) in an area not specifically allocated for parking of vehicles'.

pmlist

I've also notice that they say 'The driver now appeal to POPLA, and again does not dispute the contravention occurring' whereas I am the registered keeper. I have never told them who the driver was.

Coupon-mad

OK, so you do need to write a short summary rebuttal (not restating your appeal or the Assessor will simply not read it/consider it, if POPLA think it's new appeal points).

So just pick up things from the evidence pack such as:

- APCOA have failed to show that, as the registered keeper appellant, I can be in any way held liable as an individual person for this charge. The bylaws seem to suggest that only the driver can be liable and POPLA cannot be satisfied as to who was driving because no evidence has been supplied.

- APCOA have provided multiple photographs and a random 'map' with dots suggesting where some of those signs might be but nothing to show that the driver actually passed those signs, nor how they look in real time from a car. It was submitted in my appeal that any terms are not legible from a moving vehicle and APCOA have not shown otherwise.

pmlist

Hi, thanks for the clear guidance. I'll draft out a short rebuttal as you suggest and post up when I hear something.

spiro

If you can arrive at the front of Luton airport without seeing a sign that says you are in a restircted area for parking then the police should be arresting you for driving without due care and attention. On every roundabout where the exit you take leads towards the terminal there a 2 large signs one on the kerb side and one in the middle of the road (see Google street view). Also the same signs are on most of the lamposts between the roundabouts. Sorry but you will not succeed based on lack of signage. You need to bear in mind the council own the airport so I'm sure they have this tied down tight. On lots of occasions drivers also find themselves stopped by the police when stopped illegally because they will also be causing an obstruction which around an airport is as you can imagine sensitive given the high level of security.

Guys_Dad

spiro wrote: »

If you can arrive at the front of Luton airport without seeing a sign that says you are in a restircted area for parking then the police should be arresting you for driving without due care and attention. On every roundabout where the exit you take leads towards the terminal there a 2 large signs one on the kerb side and one in the middle of the road (see Google street view). Also the same signs are on most of the lamposts between the roundabouts. Sorry but you will not succeed based on lack of signage. You need to bear in mind the council own the airport so I'm sure they have this tied down tight. On lots of occasions drivers also find themselves stopped by the police when stopped illegally because they will also be causing an obstruction which around an airport is as you can imagine sensitive given the high level of security.

Maybe so, but in order for any PPC to claim their exorbitant charges, they need to follow the procedures with the same due diligence that they expect you to adhere to with their signs.

For example, if the signs say "No stopping at any time" or similar, should a vehicle in front stop for any reason, then are you expected to plough into the back of them to comply with the No Stopping sign? And are you expected to crash through the barriers at the drop off point too?

So the wording on signs is important, the actual procedures they follow are equally crucial. This mob are attempting to apply Keeper Liability (as per POFA) on land that is not covered in POFA and then say that they are not applying under POFA when they do. In fact, POPLA are reconsidering if they have any right to deal with non qualifying land and that means that motorists are left with no "independent" appeal organisation for such cases.

Take the case where a RK is being dropped off by his wife. The NtK arrives addressed to the RK and they pursue him. There is absolutely no requirement for the RK to give up the driver and, if he can prove he was flying that day and being dropped off, then the PPC is in some difficulties. Or they should be if all the judges were switched on ! .

That's why they avoid court like the plague and rely on motorists paying up.

Umkomaas

You need to bear in mind the council own the airport so I'm sure they have this tied down tight.

Which rather indicates how much you understand the private parking skimdustry in the context of council owned land.

Do you honestly believe that a private company can issue £100 penalties against motorists, for their own enrichment?

peter_the_piper

spiro wrote: »

You need to bear in mind the council own the airport so I'm sure they have this tied down tight.

This also begs the question "Why let a ppc get the money"?

APCON

spiro wrote: »

If you can arrive at the front of Luton airport without seeing a sign that says you are in a restircted area for parking then the police should be arresting you for driving without due care and attention. On every roundabout where the exit you take leads towards the terminal there a 2 large signs one on the kerb side and one in the middle of the road (see Google street view). Also the same signs are on most of the lamposts between the roundabouts. Sorry but you will not succeed based on lack of signage. You need to bear in mind the council own the airport so I'm sure they have this tied down tight. On lots of occasions drivers also find themselves stopped by the police when stopped illegally because they will also be causing an obstruction which around an airport is as you can imagine sensitive given the high level of security.

How about the blue APCOA signs with their Ts&Cs? From Street View these look way too small to be read from a moving vehicle, especially if you are looking at traffic flows, car park signs and maybe the restrictive signs, if you can take all that in in a a very short period of time?

For this 'offence' to stick under the PPC / BPA rules surely you have to be capable of reading that signage from your vehicle too?

The majority of the larger restrictive signs are not facing the traffic flow, although admittedly there are two as you join each roundabout but it seems there are enough other things to take in then

As a new member I can't post this link...
https /goo.gl/maps/GCtF64WWQZx