Birmingham Airport APCOA PCN

Disco1972

Ok, I'm within a week of the 35 days that APCOA stated they would take to review my appeal. The 21 days have also passed that is mentioned on my appeal for DPA. Not sure if this has any strength for the appeal though?


"consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days"


I received email confirmation from APCOA that my appeal is in process but nothing since. Do APCOA always reply against appeals? If the 35 days expire without hearing from them will this be the end of the case?


What's the norm with appeals? i.e. do they leave it right until the last few days before rejecting the appeal?

Umkomaas

Not sure if this has any strength for the appeal though?

Not really.

consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days"

What does the DPA say about failure to reply within the deadline? Check it out.

If the 35 days expire without hearing from them will this be the end of the case?

Definitely not. Don't forget that unless/until the PCN is cancelled, they have 6 years to pursue you through the courts. They don't do 'court' (at the moment).

What's the norm with appeals? i.e. do they leave it right until the last few days before rejecting the appeal?

Pretty standard behaviour.

Disco1972

Ok it's now passed the 35 days and still nothing from APCOA!


"Your appeal will be considered and a response sent you via email/letter within 35 days. Should your appeal be unsuccessful, your letter will explain the next steps for you to follow. "


I even sent this email before the 35 days expired trying to prompt a response but nothing!


"Dear Sirs,


I have not received a response to the appeal dated 27th June 2017. 21 days have expired as stipulated in Section 10 Notice under the DPA. This will be noted in the appeal to POPLA should this appeal be rejected.


Please review this appeal and either cancel the charge or provide the necessary POPLA code. "


Where does this leave me now? Don't really want this hanging for the next 6 years although surely if this did go to next stage with POPLA or even court the fact they have failed their own timeline would work in my favour?

Redx

I am afraid that you are at the "hanging about" stage and there is nothing you can do about it

you could complain to the BPA by email that APCOA have failed the BPA CoP in not making a decision, but dont expect it to do anything

this is an unregulated industry, so it is what it is

Ralph-y

if you are stuck waiting and want to do some thing ........

It may help to try your MP


this is a copy of a post by Bargepole ....

"Some action at last:

http://services.parliament.uk/bills/2017-19/parkingcodeofpractice.html

This Private Member's Bill has Government and cross-party support, and stands a good chance of making it into statute.

The full text of the clauses will be published nearer the date of the second reading, but my sources tell me it's something we should support.

Now would be a good time to write to your MP urging them to support it."

let here know that there have been many complaints about this car park scam

good luck

Ralph:cool:

The_Deep

If it gooes to PoPLA and you appeal on the basis thst it is not relevent land APCOA will cry uncle. Here is one I won against the a couple of weeks ago. It was for a station car park, but it is still non relevant land.


POPLA APPEAL - Bye-Laws Land – No Keeper Liability

[FONT=Times New Roman, serif]This is an appeal about a Parking Charge Notice issued by the operator for an alleged breach of the the company's terms and conditions in a railway station car park. The operator confirms that this land is covered by Railway Bye- laws and therefore it is not relevant land for the purposes of the keeper liability provisions of Schedule 4 of The Protection of Freedoms Act, under which it says the charge has not been issued.. [/FONT]

[FONT=Times New Roman, serif]The operator does not know who the driver was, or the owner, and it would appear that they have made an assumption that was that person. If so, I put them to strict proof of this. [/FONT]

[FONT=Times New Roman, serif]If they are relying on Elliot v Loake, this was a criminal conviction obtained from forensic evidence and has been rejected by many judges as not relevent.[/FONT]

[FONT=Times New Roman, serif]If they are relying on the outcome of Beavis v Parking Eye in the Supreme Court the circumstances bear no resemblance. Beavis took place in a free car park in a shopping centre limited to two hours where there was no opportunity to purchase extra time, and overstayed by almost an hour. The PPC were paying £52,000 a year to manage this car park and PCNs were their only source of income. It was deemed that the charge of £85 was reasonable as there was a necessity to ensure a high turnover of traffic and to discourage abuse from railway commuters. [/FONT]

[FONT=Times New Roman, serif]In the present case, the parking fee was paid, there was no obstruction, and this therefore amounts to an unlawful penalty. [/FONT]

[FONT=Times New Roman, serif]Only the land owner, in this case the Train Operating Company, can take action, and only against the driver or owner, in a Magistrates Court, within six months of the date of the alleged offence, that date has now passed.[/FONT]

[FONT=Times New Roman, serif]Spaces were poorly marked, in some cases there was no marking at all, I attach a photographs taken a few weeks later and put APCOA strict proof that the markings were regularly maintained.[/FONT]

[FONT=Times New Roman, serif]The signs are difficult to read, being up to three metres off the ground with letters as small as 5mm.in white on a pale blue background. It is impossible to see how they are sufficiently prominent to form a contract. I would refer you to Excel v Martin Cutts where the judge disallowed the claim due to poor signs.[/FONT]

[FONT=Times New Roman, serif]The PCN was incorrectly issued by the wrong company under wrong law to the wrong person.. The time has now passed for the alleged offence to be prosecuted in a criminal court, and I request that this charge is therefore cancelled. [/FONT]

[FONT=Times New Roman, serif]Furthermore, it was issued eight months ago and appealed in time. It is only now, some seven months later have I been issued with a PoPLA code. In the meantime I have been subjected to a barrage of threats, begging letters, lies and inducements by debt collection agencies, contrary to the BPA Code of Practice... [/FONT]

[FONT=Times New Roman, serif]Finally, the amount the PPC think they are owed by someone. be it driver, keeper, or owner, is confusing. It started at £60/100, went up to £160, was then reduced to £75, and later came back to £60, rising to £100 if not paid. Do they not know how much they want?[/FONT]

++++++++++++++++++++++++++++++++++++++++++++++++++ +++++++++++++

APCOA Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

Disco1972

Finally received the appeal rejection letter from APCOA (late). I've got my POPLA appeal ready but notice APCOA state on the letter that "APCOA have not claimed to and do not work, issue or seek payment under POFA as this land is covered by Bye-laws".


POFA is listed as part of my appeal quite a bit, can this still be used?

Umkomaas

I've got my POPLA appeal ready but notice APCOA state on the letter that "APCOA have not claimed to and do not work, issue or seek payment under POFA as this land is covered by Bye-laws".

Just aimed at confusing the naive into thinking that APCOA have some statutory authority in this, and meekly pay up. 'Laws' often makes people think of authority.

POFA is listed as part of my appeal quite a bit, can this still be used?

I'd leave it in because they are pursuing the keeper, and it will give APCOA plenty to deal with if they are going to contest your POPLA appeal. Under byelaws it's the owner, who isn't necessarily the keeper, who should be pursued - and not by APCOA, but by the airport themselves. In any case APCOA have no means of establishing who the owner of the vehicle is.

Are we going to see your draft for critique before submission to POPLA?

Disco1972

A notice to keeper was issued on ********** and received by me, the registered keeper of ********* in respect of an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at Birmingham Airport on ***********. 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)APCOA not using POFA 2012 - Byelaws
2) Airport Act 1986
3) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
5) 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)
6) Misleading and unclear signage
7) No landowner contract nor legal standing to form contracts or charge drivers
8 Photo evidence appears doctored
9) Not a genuine pre-estimate of loss and Breakdown of loss of business


10) APCOA failing deadlines


1) From APCOA’s rejection to my initial appeal, it appears that APCOA are attempting to claim the charge is liable to them under airport 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.





2) Airport byelawsdo 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 thatbyelaws only apply to roads to which road traffic enactments do not apply





3) 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.
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.









4) Airport land is not 'relevant land' as it is already covered bystatutory 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 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.

Disco1972

4) Airport land is not 'relevant land' as it is already covered bystatutory 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 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.


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.’



5) In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLAmust 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 POPLAon numerous occasions, that a parking charge cannot be enforced against a keeper without a valid Notice to Keeper.

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.