Parking fine Victoria Train Station Manchester

Leesh93

Please see the revised POPLA appeal below. Any additional help would be fantastic:

A Notice To Keeper/ Owner was issued on the 02/08/2017 by myself as registered keeper of the vehicle in question for the alleged contravention that occurred on 23/06/2017. I am submitting this appeal as the registered keepers and would be grateful if you would please take my appeal into consideration for the following reasons:
I believe the PCN was issued wrongly and unlawfully for the following reasons:
1. No Breach of Railway Byelaws
2. The operator has not shown that the individual who it is pursuing is in fact the driver
3. No Evidence of Landowner Authority
4. Misleading/ Unclear Signage


1. No Breach of Byelaws
From their rejection of my initial appeal, 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 2012 (PoFA), under which it states the charge has not been issued.
Under Schedule 4 of PoFA it states that:
“(1) This schedule applies where – (a) The driver of a vehicle is required by virtue of 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”. (4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150).
As I am the registered keeper, it is my right to choose not to name the driver, yet still not be legally liable, as APCOA is not using or complying with Schedule 4, PoFA. The burden of proof therefore rests with the operator I ask whom to provide 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, as they cannot infer the keeper has any liability.
2. The operator has not shown that the individual who it is pursuing is in fact the driver
The DVLAs Kadoe contract is the enabling mechanism for the DVLA to release data to private parking companies. It states that they can only use the data released to seek recovery from the driver, or the keeper if the procedure in Schedule 4 of the Protection of Freedoms Act is used, which as previously stated by APCOA in their correspondence it is not. POPOLA must therefore 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.
Furthermore, should the Operator try to suggest that there is any other method whereby a vehicle’s keeper 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 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.
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.''
(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).
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.
3. No Evidence of Landowner Authority
I do not believe that the Operator has demonstrated a proprietary interest in the land, I therefore require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
I contend that APCOA 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.
4. Misleading/ Unclear Signage
APCOA states in their correspondence: “The given instructions and conditions of entry displayed upon all entry and exit routes.” However this is not the case as seen from the imagery attached, the car park in question has a lack of clear signage, which is too high to be seen to explain what the relevant parking restrictions are. This means no contract can be formed with the landowner and all tickets are issued illegally. (Please see attached images).
The signs do not meet the minimum requirements in part 18 of 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.”
Thereofre, there was no valid contract formed between APCOA and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.

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.

Additionally under section 36 (a)(5) of the BPAs code of practice “the details of the unauthorised parking event, including the place, date and time” the timings at which the car was seen conflict on the NTK and PCN as stated by APCOA.
Finally, the amount the PPC think they are owed by someone, be it driver, keeper, or owner is confusing. It started at £50/85, and later came back to £50, rising to £85 if not paid. Do they not know how much they want? There is no consistency within their documentation.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Redx

needs proof reading as there are several mistakes in it (by myself should be TO myself)

in point 2) a point 4) is also used

and some of the above is duplicated about not identifying the driver

plus spelling mistakes like the word THEREFORE and POPLA not popola

so a good start but needs some work yet, even if it isnt given any extra appeal points

Leesh93

Hi All,

Thankyou so much for your help. My appeal has been successful. Please see below for the final appeal sent for anyone else's future reference.

Thankyou again.


Dear Sir/ Madam,

I refer to the PCN issued by the operator APCOA on 23/06/2017
POPLA Ref:
APOCA PCN Ref:

A Notice to Keeper/ Owner was issued on the 02/08/2017 to myself as registered keeper of the vehicle in question for the alleged contravention that occurred on 23/06/2017. I am submitting this appeal as the registered keeper and would be grateful if you would please take my appeal into consideration for the following reasons:
I believe the PCN was issued wrongly and unlawfully for the following reasons:
1. No Breach of Railway Byelaws
2. The operator has not shown that the individual who it is pursuing is in fact the driver
3. No Evidence of Landowner Authority
4. Misleading/ Unclear

1. No Breach of Byelaws
From their rejection of my initial appeal, 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 2012 (PoFA), under which it states the charge has not been issued.
Under Schedule 4 of PoFA it states that:
“(1) This schedule applies where – (a) The driver of a vehicle is required by virtue of 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”. (4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150).
As I am the registered keeper, it is my right to choose not to name the driver, yet still not be legally liable, as APCOA is not using or complying with Schedule 4, PoFA. The burden of proof therefore rests with the operator I ask whom to provide 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, as they cannot infer the keeper has any liability.
2. No Evidence of Landowner Authority
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 Ltds’ 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
2/4
that APCOA 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.
3. The operator has not shown that the individual who it is pursuing is in fact the driver
The DVLAs Kadoe contract is the enabling mechanism for the DVLA to release data to private parking companies. It states that they can only use the data released to seek recovery from the driver, or the keeper if the procedure in Schedule 4 of the Protection of Freedoms Act is used, which as previously stated by APCOA in their correspondence it is not. POPLA must therefore 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.
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 relevant.
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.
In the present case, the parking fee was paid, there was no obstruction, and this therefore amounts to an unlawful penalty.
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).
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.
Furthermore, should the Operator try to suggest that there is any other method whereby a vehicle’s keeper can be held liable for a charge where a driver is not identified, I draw POPLAs’ attention to the guidance given to operators in POPLAs’ 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keepers’ 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
3/4
I draw POPLAs’ 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.
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.''

4. Misleading/ Unclear
(A) Signage
APCOA states in their correspondence: “The given instructions and conditions of entry displayed upon all entry and exit routes.” However this is not the case as seen from the imagery attached, the car park in question has a lack of clear signage, which is too high to be seen to explain what the relevant parking restrictions are. This means no contract can be formed with the landowner and all tickets are issued illegally. (See Images Below).




The signs do not meet the minimum requirements in part 18 of 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.” Therefore, there was no valid contract formed between APCOA and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.

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
4/4
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.
I would refer you to Excel v Martin Cutts where the judge disallowed the claim due to poor signs.

(B) Misleading Bay Marking
Upon further visits to the car park in question it is clear that the spaces are poorly marked. The pictures below, taken in the last few weeks, show vehicles parked in unmarked bays. APCOA is well aware that drivers are using these areas yet fail to show adequate signage which would prevent any misinterpretation (See Images Below).





It is impossible to see how either are sufficiently prominent enough to form a contract.
Additionally under section 36 (a) (5) of the BPAs code of practice “the details of the unauthorised parking event, including the place, date and time” the timings at which the car was seen conflict on the NTK and PCN as stated by APCOA.
Finally, the amount the PPC think they are owed by someone, be it driver, keeper, or owner is confusing. It started at £50/85, and later came back to £50, rising to £85 if not paid. Do they not know how much they want? There is no consistency within their documentation.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Yours Faithfully,

nosferatu1001

Did APCOA fail to contest?
Congrats

Leesh93

Hi,

Yes they chose not to contest which is great news.

Redx

always the same, they dont like well constructed popla appeals or trying to justify their actions and then lose at popla costing almost £28 etc

well done