APCOA luton Successful appeal

WHSwallow

Hello all
I just wanted to say thank you, especially to coupon-mad, fruitcake and loadsofchildren123. I had a PCN from stopping at luton. I appealed to APCOA using the text in blue. Unsurprisingly it was rejected. I then appealed to POPLA and this was my response back -

[FONT=&quot]Thank you for submitting your parking charge Appeal to POPLA.[/FONT]

[FONT=&quot]An Appeal has been opened with the reference XXXXXXXXX.[/FONT]

[FONT=&quot] 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.[/FONT]

[FONT=&quot]Yours sincerely[/FONT]

[FONT=&quot] POPLA Team[/FONT][FONT=&quot]
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]I have to say I shamelessly ripped off all your hard work and will copy my appeal below.(I added item 10 as padding) For anyone who is starting the processes, I would say read the NEWBIES posts, and like I read in one post read till your head hurts!!!![/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Cheers all[/FONT]
[FONT=&quot]
[/FONT]


[FONT=&quot] [FONT=&quot]A notice to keeper was issued on the 7th of September 2017 and received by me the Registered Keeper of vehicle registration number: XXXXX on 8th of September 2017, for an alleged contravention of "Dropping off or picking up outside designated areas at London Luton Airport Central Terminal Area"[/FONT]
[FONT=&quot]As the registered keeper I ask you to consider and uphold my appeal for the following reasons:[/FONT]

[FONT=&quot]1) APCOA did not give my appeal to them due consideration.[/FONT]
[FONT=&quot]2) APCOA not using POFA 2012[/FONT]
[FONT=&quot]3) Airport Act 1986[/FONT]
[FONT=&quot]4) Reasonable cause for requesting keeper details from DVLA[/FONT]
[FONT=&quot]5) Not relevant Land under POFA 2012 - no registered keeper liability (Steve Macallan POPLA case ref no: 6062356150)[/FONT]
[FONT=&quot]6) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (Carly Law - POPLA case ref no: 6061796103)[/FONT]
[FONT=&quot]7) Misleading and unclear signage exacerbated by the extensive roadworks[/FONT]
[FONT=&quot]8) No landowner contract, nor legal standing to form contracts or charge drivers[/FONT]
[FONT=&quot]9) Photo evidence appears doctored[/FONT]
[FONT=&quot]10) Signage not shown to be compliant[/FONT]
[FONT=&quot]11) No Grace Period Given (Clause #13 BPA Code of Practice)[/FONT]

[FONT=&quot]1) APCOA did not give my appeal to them due consideration.[/FONT]
[FONT=&quot]I do not believe that anyone from APCOA has looked into my appeal submitted to them on the 8th of September 2017, instead I was sent a standardised "appeal declined response letter" which lacks consistency, is full of mistakes and contains statements that contradict each other. The first claims that the alleged offence was "dropping off outside a designated area" and the second that the "vehicle was parked in contravention of the terms and conditions of the car park" [/FONT]

[FONT=&quot]2) APCOA not using POFA 2012[/FONT]
[FONT=&quot]From their rejection of 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.[/FONT]

[FONT=&quot]3) Airport Act 1986[/FONT]
[FONT=&quot]Airport byelaws [/FONT][FONT=&quot]do not apply to any road to which the public have access, as they are subject to road traffic enactments. [/FONT]
[FONT=&quot]Airport Act 1986[/FONT][FONT=&quot]
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 that byelaws only apply to roads to which road traffic enactments do not apply[/FONT]

[FONT=&quot]4) Reasonable cause for requesting keeper details from DVLA[/FONT]
[FONT=&quot]The BPA code of practice point 20.14 says: - 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]

[FONT=&quot]5) Not relevant Land under POFA 2012 - no registered keeper liability (Steve Macallan POPLA case ref no: 6062356150)[/FONT]
[FONT=&quot]The driver has not been identified, yet APCOA are claiming POFA 2012 registered keeper liability for the charge. Airport land is not "relevant land" as it is already covered by statutory 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.[/FONT]
[FONT=&quot]In September 2016 POPLA assessor Steve Macallan found in case no: 6062356150, 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."[/FONT]

[FONT=&quot]6) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (Carly Law - POPLA case ref no: 6061796103)[/FONT]
[FONT=&quot]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 case no. 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 6 above.

7) Misleading and unclear signage exacerbated by the extensive roadworks[/FONT]
[FONT=&quot]The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the Airport road infrastructure and signs are clearly displayed'. 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 especially in the dawn, and therefore do not comply with the BPA code of practice. APCOA are required to show evidence to the contrary.

I would draw the assessor's attention to the 'No Stopping Zones' section of the Chief Adjudicator's First Annual POPLA Report 2013: "It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it. Signs on red routes, unlike those indicating most parking restrictions, are generally positioned to face oncoming traffic, rather than parallel to it."[/FONT]
[FONT=&quot]Extensive roadworks have been taking place at the Luton Airport for many months now which contributes to the overall airport chaos and confusion. The combination of unlit, unreadable, unclear signage and roadworks "clutter" (redirections, barriers, cones, diversions etc.) must prove overwhelming for any driver. I fly from Luton on regular basis and usually take a taxi to the airport. Even the taxi drivers who visit the airport on almost daily basis complain about the mayhem caused by the poor signage, constant changes, roadworks, heavy traffic etc. [/FONT]

[FONT=&quot]8) No landowner contract, nor legal standing to form contracts or charge drivers[/FONT]
[FONT=&quot]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.

[/FONT]
[FONT=&quot]9) Photo evidence appears doctored[/FONT]
[FONT=&quot]I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photos in the upper right hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has been in use by Uxbridge-based firm UKPC, who were banned by the DVLA after it emerged. [/FONT]
[FONT=&quot]I would challenge APCOA to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge APCOA that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).[/FONT]
[FONT=&quot]Furthermore the pictures on the original PCN issued on 27th August 2017 are grey in colour whereas, the ones on "the appeal declined response letter" seem digitally enhanced with a brownish/golden glow. [/FONT]
[FONT=&quot]10) Signage not shown to be compliant.[/FONT]
[FONT=&quot]The pictures provided by APCOA as evidence also do not show the sign in context with regard to the road layout, roadwork signage and the Consumer Rights Act 2015 states there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

[/FONT](insert link)[FONT=&quot]

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/lost within the clutter of roadwork signage. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]11) No Grace Period Given (Clause #13 BPA Code of Practice)[/FONT][FONT=&quot]
[/FONT][FONT=&quot]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'. 90 seconds, I would argue does not breach a fair 'grace period', and therefore APCOA are in breach of the BPA Code of Practice.

I request that POPLA uphold my appeal and cancel this PCN[/FONT][/FONT]

The_Deep

All you needed to write was Railway Byelaws land and they would have cancelled. It is a scam, they know it is a scam but many people pay up.

I have brought this to the attention of Trading Standards but they refuse to act.

bluetoffee1878

Welcome to the forum, and we’ll done it feels good doesn’t it

Great that you did your research and probably learned a good few things about this scam industry along they way