APCOA, Birmingham Airport, Notice to Hirer

MadHatter752

Thanks CM, I will alter tonight and submit. Also in #3 you mention about using the parking company's own pictures if the £100 isn't in Large letters... as per my dropbox attachment i am guessing this doesn't apply in our case... the writing is quite big, not sure i would say it is large in relation to the rest of the sign though... what do you think?


Also on the POPLA online form, it is asking me why i am appealing etc, is it best to just select "other" so i can get through and attach the appeal?

Redx

yes, choose OTHER and upload as a pdf , writing SEE ATTACHED APPEAL in any comments box

MadHatter752

thanks Redx

does the fact that we are the registered hirer, not the registered keeper, alter my appeal to POPLA as we keep mentioning NTK in the letter.. does POFA 2012 still apply in Hirer cases?

CM - re the appellant para... if it does apply as hirer, would something like what Kitty25 wrote work for us too... i have pasted it below

6) 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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.


thanks

twhitehousescat

MadHatter752 wrote: »

thanks Redx

does the fact that we are the registered hirer, not the registered keeper, alter my appeal to POPLA as we keep mentioning NTK in the letter.. does POFA 2012 still apply in Hirer cases?

thanks

does POFA 2012 still apply in Hirer cases?

POFa does not apply to ANYBODY in airport land

are there any comments or statements on any letters you have recieved that mention POFA?


in fact in their letter they clearly state that they are NOT relying on POFa ,

MadHatter752

twhitehousescat wrote: »

does POFA 2012 still apply in Hirer cases?

POFa does not apply to ANYBODY in airport land

are there any comments or statements on any letters you have recieved that mention POFA?


in fact in their letter they clearly state that they are NOT relying on POFa ,

so I am still ok to talk about it in my appeal to POPLA?

Guys_Dad

You need to cover both.


I contend there is no Keeper liability as the land in question is not covered by POFA as it comes under byelaws and, as such, is specifically excluded from the Act ..........
...............

However, should the assessor disagree, then I am appealing under POFA with the following appeal points....................

Along these lines, but obviously with the right amount of meat in the appeal.

Coupon-mad

Coupon-mad wrote: »

Should be enough to see off APCOA but I would throw in the template from post #3 of the NEWBIES thread that talks about no driver liability because the appellant is the keeper and has not been shown to be the individual liable (driver).

All you needed to add was the above and it will win, stop fretting and get on with your life!

MadHatter752

Coupon-mad wrote: »

All you needed to add was the above and it will win, stop fretting and get on with your life!

:rotfl:LOL thanks CM.

I have added the whole of the Kitty25 paragraphs anyway... will make it longer for them to read... eight pages by the looks of it!!!

Hopefully it will put this one to bed and I can go back to fretting about my own case!!

Coupon-mad

Perfect! I subscribe to the 'bore them senseless with a stupidly-long-but-relevant' POPLA appeal' approach! :rotfl:

MadHatter752

Well as expected, we received a response from POPLA today confirming that APCOA did not wish to contest the appeal and that our Appeal was successful.

Thanks everyone... Really appreciate the help. As mentioned, I pinched most of Bobo0742's defence and added a Kitty25 paragraph but if you think it would help others to post my appeal let me know and I'll log onto the laptop and put it up.

Thanks again guys x