APCOA Swindon Train Station POPLA

concernedjohn5

Hi Everyone

So I received a PCN for using Swindon Train station parking. As I was so sure I had paid and displayed, I replied the PCN with a copy of the receipt I had displayed on my dashboard. My response was: The driver wants to challenge the ticket as he had a valid ticket displayed, and I added a copy of the ticket.

APCOA responded saying the provided ticket was by Horizon Parking. Up till that point, I had no idea there were 2 parking stations side by side. And driving through the car park, the Horizon Parking rates were so visible and the ticket machine is located 2 steps away from APCOA which makes everything all the more confusing.

Having refused my appeal, APCOA has now given me a POPLA number to take my challenge further if I so wish.

What would be the best way to challenge this seeing APCOA know that a ticket from a ticket machine few metres away from the car park was purchased and there were really no signs warning that there are 2 different car parks with different rates. The onus is on the driver to work this out which is not great when you are rushing to catch a train. Please advise.

Thank you.

The_Deep

Does not really matter what you say as long as you include the words "Railway byelaws", "not the driver", "no relevant land", "no keeper liability", "Magistrate Court" "TOC", and "six months".

Here is one I made earlier which caused the to chicken.

This is an appeal concerning a Parking Charge Notice issued by the operator for an alleged breach of the the company's terms and conditions of parking in in a railway station car park. The operator confirms that this land is covered by Railway Bye- laws and therefore it is not scheduled land for the purposes of the registered keeper liability provisions of Schedule 4 of The Protection of Freedoms Act., which it says the charge has not been issued under.

[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 I, the registered keeper was the driver. If so, they must prove, on the balance of probabilities that that is the case. The car insurance names two drivers and others drive it from time to time. [/FONT]

[FONT=Times New Roman, serif]If they are relying on Elliot v Loake they must be aware that several recent court cases have failed on this assumption. Ellott v Loake was a criminal prosecution where the verdict relied on overwhelming forensic evidence. [/FONT]

[FONT=Times New Roman, serif]If they are relying on CPS v AJH Films that too has been found wanting in the courts as the defendants were employer and employee. Several County Court Judges have recently dismissed these arguments as having no relevance in Contract Law.. [/FONT]

[FONT=Times New Roman, serif]If Apcoa 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 where there was no opportunity to purchase extra time, and overstayed by almost an hour. As the PPC were paying £52,000 a year to manage this car park and PCNs of this nature were their only source of income, it was deemed that the charge of £85 was reasonable as they had a commercial interest in this site as there was a necessity to ensure a high turnover of traffic and to discourage abuse from railway commuters. Furthermore, Mr Beavis failed to engage with the parking company up until they embarked on court proceedings.[/FONT]

[FONT=Times New Roman, serif]In the present instance the full parking fee was paid, there was clearly no obstruction, and this therefore amounts to an unlawful penalty. It appears therefore that the operator is attempting to obtain monies from the Registered Keeper to which it has no entitlement. [/FONT]

[FONT=Times New Roman, serif]Only the land owner, in this case the Train Operating company, Great Western Railway, 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]Nevertheless, Popla should also be aware that several spaces had been requisitioned by Network Rail for engineering works and the storage of materiel for the electrification of the line. Parking spaces for members of the public at this busy railway station have been severely curtailed. Common sense dictates that GWR should have instructed the operator to exercise lenience instead of allowing them to penalise travellers who were forced to park in unmarked bays without causing an obstruction. Provision should have been made to make good this loss, but, instead of managing parking sensibly. Apcoa sought to maximise their profits. .[/FONT]

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

[FONT=Times New Roman, serif]The signs are difficult to read, being up to eight feet in height, in letters of as small as 5mm in height, 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. 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. Furthermore, it was issued eight months ago and appealed in time. It has only now, some seven months later that, making no mention of the appeal last year , the operator has been rejected it, and PoPLA Code issued. In the meantime I have been subjected to a barrage of threats, begging letters, lies and inducements by debt collection agencies.. [/FONT]

[FONT=Times New Roman, serif]Apcoa should be made aware of their blatant misbehaviours of this incompetence. Once this appeal has been dealt with, I will be taking action through the courts concerning their unreasonable behaviour and Data Protection Act breaches. . [/FONT]

[FONT=Times New Roman, serif]Finally, the amount the PPC think they are owed by someone. be it driver, keeper, owner, Uncle Tom Cobley, 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. They do not seem to know how much they think they are owed.[/FONT]r

concernedjohn5

Hi The Deep

Thank you for your comments and suggestions. I have drafted a proposed appeal that I hope to send to POPLA.

Coupon-mad

Urrrrgh, did you say who was driving? This was 100% winnable by the keeper, using our templates.

Please show us your proposed POPLA appeal. Do not rush it like the first appeal.

concernedjohn5

Hi Coupon Mad

No I did not state the driver name only stated that the driver wants to challenge the PCN. Appeal draft to follow shortly.

concernedjohn5

Below is the proposed appeal, I am hoping to send to POPLA.

I am not very sure about the the last paragraph of point 6 though, comments and suggestions on what I should add or remove will be appreciated.

........................................................................................................

As the registered keeper, this is my appeal about a Parking Charge Notice issued by APCOA for an alleged breach of the company's terms and condition in a railway station car park.




Breach of POFA 2012 Schedule 4 Relevant Period
Railway Land Is Not ‘Relevant Land’
APCOA Using Railway Bye law for claims
Appellant not being the individual liable
Breach of DVLA’s KADOE contract
Non-compliant signage
Lack of standing / authority from landowner!




(1) Breach of POFA 2012 Schedule 4 Relevant Period (Should APCOA attempt to apply POFA 2012)

Paragraph 9 states that the relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.


A fundamental requirement for the use of POFA 2012 Schedule 4, Paragraph 9 is that APCOA must send a Notice to the Keeper within 14 days of the alleged contravention which APCOA has failed to do on this occassion.


The alleged contravention happened at Swindon Main Car Park railway station on …... of September 2017. The Notice to Keeper was issued on …. of October 2017 and can be presumed to have arrived on ... of October 2017, which is 45 days after the alleged contravention. APCOA Parking (UK) Ltd has therefore failed to issue a Notice to Keeper in the required timeframe, and I therefore cannot be held liable in this instance for the alleged debt of the driver.


2) Railway Land Is Not ‘Relevant Land’

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 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”.

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 registered keeper I am not legally liable, as this Act does not apply on this land. I ask APCOA 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.

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.’


3) APCOA Using Railway Bye law for claims

By claiming charge is liable to them, it appears that APCOA are attempting to claim this under railway byelaws. I reject this and put to them strictly to prove on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

I also refer to Freedom of Information Act Request – F0013227 whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.

Therefore, any breach of byelaws is a criminal offence, not a breach of any contract APCOA may say the driver entered in to. If the driver is found to have breached byelaws 14 (1-3), the resulting penalty is paid to the government, not to APCOA or the railway. Further, byelaw offences are decided by the court, not by APCOA – the parking company or railway can only allege the breach.




(4) Appellant not being the individual liable

APCOA 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. Any person(s), with the consent of the registered keeper, may drive a vehicle as long as the driver is insured.

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 the Registered Keeper), 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.

Not being the owner of the vehicle, under the Railway byelaws the registered keeper of the vehicle cannot assumed to be the owner anymore than they can assumed to be the driver.

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 APCOA 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 APCOA, 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) Breach of DVLA’s KADOE contract

The DVLAs KADOE contract is the enabling mechanism for the DVLA to release data to APCOA. 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 and only applicable to private lands in England and Wales). Since PoFA cannot be used under byelaws, for contract-based parking tickets, only the driver could be held liable. In such a situation the parking company might still write to the keeper to ask them to nominate the driver, but they cannot infer they have any liability.

This illegal obtainment of the keepers’ details and implication of liability is a serious breach of the Data Protection Act and as such I shall be notifying both the DVLA and ICO accordingly. I shall also be seeking damages from APCOA for £750.00
As APCOA also failed to send the NTK within 14 days of alleged contravention, they have clearly not followed the procedure in Schedule 4 of POFA 2012.

6) Non-compliant signage

APCOA signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Entrance signs which are mandatory under the code are not visible and do not follow paragraph 18.2 of the code.

There was neither contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. 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

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:


In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge, which is hidden in small print. Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put APCOA to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 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:

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/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put APCOA to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require APCOA to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. Rather intersting that the pictures that came with the notice had no site entrance photos

Furthermore, APCOA claims there is another operator sharing boundary with it on the railway land and the ticket displayed by the driver is that of the other operator. POPLA should note that the only visible rates as you drive through the car park is that of the other operator. This visible rate is what the driver saw and the rate matched what the meter machine (within metres of where the car was parked) charged the driver. The questions needs to be asked of APCOA why their rates are not as visible as that of the other operator and why they, knowing, that there is a danger of drivers being mislead do not have clear and legible signs with their rates and also legible notice to guide drivers not to use the other operators machine.



(7) Lack of standing / authority from landowner!

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states: “The written authorisation must also set out:

a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined!

b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement!

d. who has the responsibility for putting up and maintaining signs!

e. the definition of the services provided by each party to the agreement.''

I do not believe that APCOA’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a TOC gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay APCOA (not that a keeper can be liable anyway on non-relevant land and APCOA cannot enforce byelaws themselves, only the Train Operating Company (TOC) or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). APCOA have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.

I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for APCOA merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put APCOA to strict proof of compliance with all of the above requirements

Umkomaas

Appeal point #6

The KADOE contract is outside the remit of POPLA. They won’t adjudicate on that.

A quick glance-over shows no other glaring issues, but without seeing exactly what your initial appeal said, I’d reserve judgement on the PoFA-related elements.

I know this is what you said in your response to CM above

No I did not state the driver name only stated that the driver wants to challenge the PCN.

it’s not directly about ‘naming the driver’, but statements like ‘I didn’t see the signage’, ‘I parked’, ‘I circled around looking for a parking spot’ (anything with me, myself or I in it is dangerous) will be taken by POPLA as the driver being identified.

concernedjohn5

Hi Umkomaas

My response read

The driver of the car wishes to challenge this notice because there was a valid ticket on the day in question. Below is a copy of the ticket. Please cancel the notice and confirm in writing.

Hope above does not count as "naming the driver"?

Coupon-mad

Sounds OK, but cover yourself by explaining to POPLA at the very start that you appealed as registered keeper to the parking firm saying that 'the driver wants to appeal' against the PCN, but for the avoidance of doubt, the driver's actual identity was never given and this appeal remains purely from you as registered keeper.

You will win as long as POPLA don't misunderstand that, hence spell it out at the top.

Umkomaas

My concerns now removed. Also follow CM’s advice.

concernedjohn5

Thank you CM and Umkomaas.

I'll highlight the point raised by CM and remove the KADOE section.