parking fines - railway car park

Fruitcake

StaffsSW wrote: »

It's interesting that APCOA will transfer liability to the hirer, yet after a long discussion with Wright Hassall today, they insisted that under railway byelaw 14 "The Owner" is always liable.

When I asked them for their definition of owner, they said it was the registered keeper. But on the front of the V5 document, it clearly states "this document is not proof of ownership". In my specific case, the vehicle is owned by a german finance company, and we pay a monthly finance charge for it. Although we are the RK, the finance company has title to the vehicle as owner - they are the ones that paid for it.

Wright Hassall have now agreed not to pursue my company any more Indigo/ZZPS tickets, and I'm getting this in writing.

I do wonder why APCOA have a different interpretation of Byelaw 14?[/QUOTE]

Because CRAPCOA are a bunch of lying money-grabbers perchance?

Fruitcake

zed37 wrote: »

so i should change that to i am the lessee (company car).

I think so, yes. I still suggest you put byelaws in the title and move point four to the top to make sure the assessor sees it.

Also add that CRAPCOA have admitted that byelaws apply. Back it up with their own words and a copy of the NTH where they mention this.

You should also complain to the BPA and DVLA that the scammers have admitted that byelaws apply and therefore have no reason to obtain keeper data. I believe this is s breach of their KADOE contract with the DVLA, and also a breach of the DPA.

You should also complain to your MP, Mrs May, and Andrew Jones MP. Tell them that your vote will depend on their response to this unregulated scam.

Coupon-mad

Yes, change it.

You should not be saying you are the rk because you aren't, and you've missed the very point that will win this for you as 'hirer/lessee' (use both terms so POPLA 'get it').

You should be able to find POPLA appeal wording written by Edna Basher about para 13 and 14 of Schedule 4 which sets out what the parking firm failed to do right! No hirer liability, then.

zed37

THANKS EVERYONE FOR YOUR HELP - please could someone review this appeal... hoping it is right i have apcoas picture of their NTK and images of the signage at the car park. i have also decided to add the images of car leaving and entering will these be okay.

POPLA Ref ...................
APCOA Parking PCN no .......................

A notice to hirer was issued on 2nd of May, 2017 and received by me, the hirer/leese of the vehicle in question alleged contravention that occurred on 18th March, 2017. I am writing to you and would be grateful if you would please consider my appeal as I believe I am not liable for the charge I am not liable for the alleged Charge for the following reasons:

LOCAL BYELAWS MATTER ON NON-RELEVANT LAND.


From their rejection of my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under railway byelaws. I reject this and put them strictly to proof on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA. I understand that APCOA do not own the car park and that railway by-laws apply. This means the site is not considered 'relevant land' under the POFA 2012.

According to their reply to my original appeal they state the following
(I WILL UPLOAD PICTURE LATER)

(1) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150).

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 hirer/lessee 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.

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.


(2) APCOA has failed to notify me, the hirer/lessee, and a charge notice within 14 days of the parking period in question.

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 18th March, 2107, and the notice to hirer was received 45 days later on 2nd May, 2017.

The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

In order to rely upon POFA to claim unpaid parking charges from a vehicle’s hirer, an operator must deliver a Notice to Hirer in full compliance with POFA’s strict requirements. In this instance, the Operator’s Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)). The Operator did not provide me with copies of any of these documents.


[Include this additional paragraph if the Notice to Hirer only refers to the Notice to Keeper and not to the information contained in the Notice to Keeper].

Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. The Operator’s Notice to Hirer refers only to the Notice to Keeper, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, the Operator failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2) of Schedule 4 of POFA.

[Alternatively, include this additional paragraph if the Notice to Hirer does not even refer to the Notice to Keeper].

Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. The Operator’s Notice to Hirer does not even refer to the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, the Operator failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2) of Schedule 4 of POFA.


Should the Operator try to suggest that there is any other method whereby a vehicle’s keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:
popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“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.......
.......... However keeper information is obtained, 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”.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle’s hirer. For this reason alone, POPLA may determine that the Operator’s claim against me is invalid

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.

(3). The PCN is also non-compliant and erroneous hence failing to meet the conditions of Schedule 4 of POFA 2012, and BPA (of which APCOA is a member) Code of Practice, and therefore there is no keeper liability.

In order to pursue Keeper Liability under the POFA, APCOA must have met all the strict conditions in the Act. However, they have failed to fulfil the requirements of the PCN as per paragraph 7/2/a and paragraph 9 Schedule 4 of the Act, and BPA section 20.12 Codes of Practice.

The PCN is non-compliant under the POFA 2012 for the following reasons:

(A) The PCN does not state how long the vehicle was stationary for. The period of parking cannot, and should not be assumed from the images, as the photographs only show the car entering the area at 17:37.42 and leaving at 17:51.37. At no time has a photograph shown evidence that this car using the charged spaces provided. This contravenes Schedule 4 para 8 & 9 of PoFA. 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


(B) The PCN fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a PCN describes any unpaid charges which the driver owed at the time of the issue of the postal PCN.

C) A charge for breach of contract cannot be described as unpaid by the driver at the time the PCN is issued, because it only arises at the time the PCN is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the driver owed before the PCN was issued to be stated, and that this is the only sum that can be pursued from a Keeper.

(4) 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).
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 hirer/lessee, 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 hirer/lessee 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 above.




(5). APCOA not using POFA 2012. - Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012 - 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 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”.



(6) Misleading and unclear signage.

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 Manchester Victoria 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.






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

Any motorist would find the above delays to be normal, expected, justifiable, and in any case not part of the period for which parking is being paid. I refer you to Parking Eye vs Hotchin in which the judge ruled that ANPR evidence only showed the vehicle’s time of entry and exit to the car park – not the time parked. Current signage in the car park only requires payment for times parked.

I refer you to the BPA’s Approved Operator Scheme Code of Conduct v6, with which it is expected that Smart Parking Ltd abides:

• 13 Grace periods
• 13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
• 13.2 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.
• 13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.


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

zed37

Dear all,

i have received a reply about my appeal to POPLA.....

According to their letter they claimed that the charge was based on railway byelaws yet in their statement they are stating that the charge Although Bye-laws apply at this site giving parking instructions; this notice was not issued under PoFA or the bye-laws. This notice has been issued due to a breach of terms and conditions.

The driver of this vehicle was clearly named to be the appellant. (they have enclosed a letter from the hirer company naming me but there are 3 named drivers on the policy and just not me ). An employee and the only named river of the vehicle. The appellant has not denied being the driver on the day in question; nor has she evidence that she wasn’t. b) Signage is prominently placed upon entry to, within and among all exit routes to this site. All signage is BPA compliant, and of a lit or reflective nature. It is the driver responsibility to refer to these and understands the terms of remaining within. c) APCOA have been appointed by Network Rail to enforce upon any vehicle parked within heir car park in breach of their terms and conditions of use. Please find a letter of authority attached. d) All users of this car park are given a grace period of 10 minutes from the time of entry to make and allocate a payment as instructed. This vehicle remained within for 17 minutes and left the site without making a valid payment. Requesting a grace period evidences that this driver was aware of the requirement to make a payment.

System

Driver has not been identified so unless they have evidence, then POPLA will bin this one.

Coupon-mad

The driver of this vehicle was clearly named to be the appellant. (they have enclosed a letter from the hirer company naming me but there are 3 named drivers on the policy and just not me ).

Point that out to POPLA, that:

The owner/lease hire firm merely named the hirer, and could not have known the driver as they were not there at the material time and there are 3 named drivers under this hire agreement. This PPC then failed to follow para 13/14 of the POFA as regards the enclosures needed with a NTH. And in any case, as this is (by their own admittance) a byelaws site, a private firm cannot sidestep the statutory control that applies here, and pretend that 'parking charges' can be issued as some sort of bribe not to use the Magistrates court. Without evidence of who was driving the parking firm have no case against the appellant.

zed37

Yes initially they said it was railway bylaws that apply now they are saying it is due to breach of terms and conditions.

also i have documentation that there were 3 drivers on this policy (its a company car but 3 drivers are named on it) shall i copy that into my reply as evidence or not.

Thanks for everyones help.

pappa_golf

they cannot just forget that the land is railway property , bylaws supersede anything else ,

Umkomaas

also i have documentation that there were 3 drivers on this policy (its a company car but 3 drivers are named on it) shall i copy that into my reply as evidence or not.

Link/attach/embed anything that is helpful to your case.