Luton Airport - APCOA withdraw again at POPLA - NKL

APCON

Thanks to the great advice on this forum I formulated an appeal using existing templates, with some personalisation to cover my circumstances, poor photos from APCOA, a piece about the small Ts&Cs signage. I also made sure there was direct reference to 2 recent, relevant successful POPLA appeals in the first two points.

Sure enough, APCOA withdrew, NKL, no keeper liability code on the POPLA website.

Thanks everyone! :beer:

A notice to keeper was issued on 15th August 2016 and received by me, the registered keeper of XXXXXXX, on 17th August 2016 for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at Luton Airport.
I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons:

1) No Keeper Liability, not relevant land under POFA 2012 (ref POPLA case Steve Macallan 6062356150)
2) The operator has not shown that the individual who it is pursuing is in fact the driver who may be liable for any charge (ref POPLA case Carly Law 6061796103)
3) Airport Act 1986
4) Unclear terms and conditions signage
5) Amount demanded is a penalty

6) Photo evidence inconclusive

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

8) No Grace Period Given (Clause 13 BPA Code of Practice)
9) Operator pursuing payment after appeal (Clause 22.14 BPA Code of Practice)


1) APCOA rejected my initial appeal, where I stated there is no keeper liability. It would appear that APCOA may be attempting to claim the charge is liable to them under airport byelaws.
Airport land is not 'relevant land' as it is already covered by statutory bylaws or the Airport Act 1986 and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land.
I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws (or the Airport Act 1986 and road traffic enactments), rather than the Protection of Freedoms Act 2012. I reject this and put them strictly to proof on which byelaw or road traffic enactment they claim is broken, and in any case, why this would result in an obligation to pay APCOA.
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.’

2) In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. The fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This finding was made in 6061796103 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 1 above.

3) 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

4) 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'. After looking at the road on Google Street View it would appear that the blue signs, which I believe may contain the detailed terms and conditions (although I am unable to read), are particularly small and appear impossible to read without stopping and leaving the vehicle. It would also appear that they are below the minimum size of 450mm x 450 mm as required by the BPA Code of Practice. Even if the sign is the correct size it cannot be read without stopping. APCOA are required to show evidence to the contrary.
I appreciate that the Google images are from 2015 and they may not be what is currently in place so I would ask APCOA to provide evidence of the wording, position and size of the actual signage in place at the time of the alleged contravention. I can see from the Luton Airport website that there are ongoing road works and would also ask if APCOA have reviewed the location and size of any signage in place to take account of the roadworks and ensure that their signage is as clear as possible. Roadworks mean drivers have to pay more attention for potential changes in layout and traffic flow and therefore APCOAs signs may be missed.
It appears the signage at this location is unclear and is 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 am sure the assessor is aware of the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."

5) 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 no 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. (Appeal point 4 also refers to the signage which is based on what can be seen on Google Street View).

6) I would bring into question the photographs supplied by APCOA – they do not show clear evidence of the alleged breach of terms and conditions – the first two show a side-on view of a vehicle, with no registration plate visible and no relevant signage or road markings. It is not possible to determine from these photographs if the alleged breach of terms and conditions took place, the location or the vehicle registration. According to the times on the photographs they were taken only 12 seconds apart. A third photograph only shows a close up of the registration plate XXXXXXX in isolation. This third photograph is partially obscured by a sign that does not appear in the other photographs.
I would also question the time stamps and location coordinates. These details are added as a black overlay box on-top of the photos in the upper right hand corner. It is easy to use free photo-editing software to add these black boxes and text with authentic looking meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would also challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such a way that could be easily edited (there are more sophisticated and tamper proof ways of hardcoding photo data).


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 to POPLA.

I contend that APCOA Parking Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles APCOA Parking Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to APCOA Parking Ltd to prove otherwise so I require that APCOA Parking Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between APCOA Parking Ltd and the owner/occupier, containing nothing that APCOA Parking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.
I would also ask to see the specific section of the contract that covers the enforcement of the airport roads infrastructure, not just car parks, and how the owner is able to authorise the enforcement of bylaw or road traffic enactment offences by a private company.


8) As par 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'. 12 seconds, I would argue does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.

9) I submitted my appeal to APCOA by email on the 28th August and received an email saying it had been received that day. Yet on the 5th September I received a reminder letter dated 31st August asking for payment at the full rate of £80. This is in breach of the BPA Code of Practice 22.6.
When you receive a(sic) appeal about the issue of a parking charge, you must stop work on processing the charge immediately. You must not increase the charge until you have replied to the appeal.

After consideration of the above points I would request that POPLA uphold my appeal and cancel this PCN.

Fruitcake

Well done!

Did you complain to the BPA and DVLA about this? They know the car park is not relevant land yet still issued a PCN.

Did you complain to the BPA about item 9, asking for money when it was under appeal?

You should also complain to your MP and Mrs May that parking companies are trying it when they know they have no case.

pappa_golf

why was this case actually heard by POPLa? ALL cases where the PPC state POFa of property that goes under bylaws is supposedly on hold


another one that slipped the net