APCOA Broadway PLaza POPLA

monkeyofficeboy

Hi all,

I have been using the advice of this forum for a number of years now and have been able to get several PCNs appealed. However my significant other (SO) has received a PCN from APCOA parking relating to Broadway Plaza in Birmingham, which I appealed as keeper. APCOA rejected this appeal and we now have a POPLA code. It is at this point I am not too sure what to do. After a brief search the only APCOA threads I see in Birmingham are for the airport which isn't where this PCN was issued. I want to know what grounds I can appeal the PCN on.

If it helps any, my SO paid for parking, but entered her ticket details incorrectly, so they are blaming her and calling it user error, even though they know full well that the parking was paid for. They even made an error in their rejection letter by stating we paid for reg XXXXXX rather than YYYYYY and our car has reg ZZZZZZ clearly shown on their ANPR pics!

Any help on this would be greatly appreciated (and yes I have read the updated Newbies thread too, but was still unsure).

Thanks

Umkomaas

POPLA appeals are dealt with in the NEWBIES sticky in a separate section, contained in post #3. It includes four of the most important appeal points in template form ready to copy and paste.

If you search the forum on 'APCOA Plaza' and 'APCOA POPLA' I'm sure you'll find some very recent appeals. Even those for other APCOA car parks will contain very useful appeal points about signage, PoFA non-compliance, Authority to manage parking and issue charges (contract with landowner), Grace Periods, BPA Code of Practice breaches, why Beavis doesn't apply in your parking event - there will be plenty there to get you underway with your draft appeal.

Post the draft here for critique before submitting to POPLA. But please be aware there are far too many enormous, lengthy appeals being put before forum regulars for anyone to go through them word for word. You must do the proof reading.

Take your time over this, you have 28 days from the date of your rejection letter.

monkeyofficeboy

Thanks for the reply. We only have a couple of days left to deal with the appeal as our 28 days runs out tomorrow (We have just moved house, and so it has been pushed to the bottom of the pile by my SO!).

This is the appeal I intend to send to POPLA, hopefully it will suffice?



POPLA Ref
APCOA Parking PCN number

A notice to keeper was issued on the 13th October 2016 and received by myself (the registered keeper) on the 20th October 2016 for an alleged contravention of “Use of Private Car Park without making a valid payment” at Broadway Plaza, Birmingham. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

[FONT=&quot]1) [/FONT]Amount demanded is a penalty.
[FONT=&quot]2) [/FONT]Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012.
[FONT=&quot]3) [/FONT]The operator 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)
[FONT=&quot]4) [/FONT]Misleading and unclear signage.
[FONT=&quot]5) [/FONT]No landowner contract nor legal standing to form contracts or charge drivers.

[FONT=&quot]1) [/FONT]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 as soon as the vehicle entered the car park (as shown by the ANPR cameras). The signage cannot be read safely from a moving vehicle when entering the car park.
Furthermore, APCOA acknowledge in their appeal letter that “you purchased a valid parking session” and so they have already been paid the parking amount required, and so the charge must only be considered a punitive penalty.

[FONT=&quot]2) [/FONT]If APCOA want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and APCOA 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 APCOA have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. 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 5th October 2016, and the notice to keeper was received 15 days later on 20th October 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.

[FONT=&quot]3) [/FONT]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. 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 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 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."
Nowhere on the PCN does it make mention that APCOA have the right to pursue the keeper of the vehicle. It does not make mention of Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012, and so no warning was issued in the original PCN of APCOA’s right to collect any payment from myself (the registered keeper).

[FONT=&quot]4) [/FONT]The alleged contravention, according to APCOA, is in “breach of the terms and conditions of the use of the car park infrastructure where signs are clearly displayed throughout the area showing these terms and conditions”. 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. APCOA are required to show evidence to the contrary.

[FONT=&quot]5) [/FONT]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 APCOAParking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

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

Umkomaas

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 thought the parking 'contravention' was in an actual car park, not on a roadway? What place have 'road traffic regs' in a private car park?

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.

This is a very old case - not sure where you are trying to go with this? Maybe I'm missing something - can you explain?

A general point - place a header (corresponding with your bulletpoint list) above each appeal section to allow the Assessor to focus in on sections.

Your challenge to the NtK on the grounds of non compliance with PoFA has drifted into non compliance with the BPA CoP. PoFA is the law; the CoP is not, so adjust that section to bring PoFA more into it.

Are there any other non compliance issues with the NtK - I can't believe there aren't. You need to build them in. Check your NtK with PoFA Schedule 4 (para 9 for ANPR camera capture) pedantically - every word required by PoFA must be in the NtK if they are to seek keeper liability.

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

http://www.parkingcowboys.co.uk/keeper-liability/

Do you have any photos of the signage? Are you far away to go and take some pretty sharpish, given your POPLA deadline?

monkeyofficeboy

Thanks...

I have made the changes you suggested and will lodge with POPLA. You are correct by the way, APCOA's NtK was non compliant in several ways with POFA 2012, as it missed several things off.

I will keep everyone posted on how it goes.

Coupon-mad

If it's not already submitted I would make it much longer. The standard paragraphs used there are not the template ones from the NEWBIES thread post #3. For example, the forum-version of 'unclear signs' and the 'no landowner authority' templates are at least 3 times longer than that (deliberately so because PPCs throw in the towel rather than contest).

Also I would amend this (below) to not quote the word ''you'' and replace it with the driver (outside the quotation marks). You don't want a POPLA Assessor skim-reading it and the word 'you' jumping off the page at her.

Furthermore, APCOA acknowledge in their appeal letter that the driver ''purchased a valid parking session” and so they have already been paid the parking amount required, and so the charge must only be considered a punitive penalty.

I am concerned that you haven't gone far enough or found the real nitty gritty of the non-compliant points in the PCN. IMHO, the main one to look at is always 9(2)f, the warning about keeper liability '28 days from the day after the date given'. Is that there and properly stated? If not then that's your line of attack, not these much weaker points below. Even the fact it was received on day 15 isn't provable so won't cut it with POPLA on its own so look for the more important phraseology in para 9 and spot where APCOA have omitted it:

2) If APCOA want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and APCOA 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 APCOA have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. 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 5th October 2016, and the notice to keeper was received 15 days later on 20th October 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.

Oh, and I didn't notice if you said in the POPLA appeal that you were not the driver but you should do, at the start.

monkeyofficeboy

Just a quick note to say a massive thanks. As I am sure comes as no surprise, APCOA have just informed POPLA that they do not wish to contest my appeal, and so it has been successful!

I will post in the POPLA results thread too, but just wanted to add a personal note of thanks to Umkomass and Coupon-Mad, cheers guys!