APCOA Wigan - Initial challenge unsucessful

nickysantanov

Hi,

I struggled to find a similar situation in the forum search, so hope I'm not duplicating...

My car was parked in Wigan Grand Arcade 19/03/18 and approx 10 days later I (as keeper, not driver) received a PCN via post for the alleged contravention of 'Use of Private Car Park without a valid payment/permit'.

The driver assures me that payment was indeed made as it was a memorable experience... ANPR has recently been installed and this was the first time the driver had used the car park since. They distinctly remember having to enter the car registration number and being presented with an image of the car before paying the. The car park was exited fairly promptly thereafter.

As keeper, I replied by post with the following (received by APCOA, 10/03/18):"Dear Sir/Madam,

A parking charge notice was issued to me as the registered keeper of vehicle *******. The notice falsely alleges a breach of terms and conditions of use of the car park at Wigan Grand Arcade, specifically ‘Use of a Private Car Park without a valid payment/permit’.


Immediately prior to exiting the car park a payment of £2.60 was made with the vehicle’s registration mark being entered into the payment machine. I presume a system must be in place to keep track of payments received so you can have this confirmed without further input from me.

However, I was advised by another user of the car park that it is a frequent occurrence to be issued with unjust demands for payment by APCOA at this facility and so I have kept the payment receipt confirming payment has been made as above."


(There are a couple of articles in the local newspaper about honest motorists being slapped with fines.)


Unfortunately, foolishly, the receipt has now been misplaced so I'm without that evidence but a letter was received 19/05/18 confiming my appeal has been unsucessful:


"We have checked our database and cannot find a payment made to your vehicle registration."



The driver is 100% confident that the payment was made prior to exiting the car park... however I'm worried about taking it further in case by some bizarre coincidence, the driver of my car has entered a similar registration number to mine and been presented with an image of a very similar looking car before paying for someone else's parking!


(In future, I'll avoid using this car park, but I'll be certain if I ever have to I'll be taking images of the receipt.)


Any pointers/guidance would be much appreciated.


Thanks,
NS

Le_Kirk

presented with an image of the car before paying

Did the DRIVER tell you it was an image of your car with the correct VRM? In which case, unless the DRIVER paid for someone else's car by mistake, the PPC should be able to find a record of that VRM having paid.

Quentin

Have you read the Newbies faq thread near the top of the forum??


#3 advises on your next step (POPLA)

nickysantanov

Le_Kirk - Thanks for the follow up... the driver is adamant that the correct VRM was entered, and that the image was my car. The parking firm claim that they've "checked their database and cannot find a payment made to [my] vehicle registration".

nickysantanov

Quentin wrote: »

Have you read the Newbies faq thread near the top of the forum??


#3 advises on your next step (POPLA)

Thanks Quentin - I have read the newbies thread, and searched the forum but didn't find anything that seemed particularly similar. Next stop POPLA...

Coupon-mad

Search the forum for POPLA APCOA and copy one (minus the point about byelaws, as this isn't an Airport).

APCOA are among the easiest to beat, when you haven't said who was driving. Long POPLA appeals make them fold!

nickysantanov

Coupon-mad wrote: »

Search the forum for POPLA APCOA and copy one (minus the point about byelaws, as this isn't an
Airport).

APCOA are among the easiest to beat, when you haven't said who was driving. Long POPLA appeals make them fold!

Appreciate the guidance coupon-mad. There's almost too much information on this forum Cheers!

Coupon-mad

Yep but when you search & read APCOA POPLA drafts you'll see a pattern to copy, just remove the byelaws point.

nickysantanov

Ok, sorry folks... I'll understand if this is ignored... I've taken the APCOA POPLA Airport template and removed what I think to be the irrelevant points to my case and came up with this, largely the same with my own specifics. Anyone care to have a scan through please in case I've included something I shouldn't or vice versa?


POPLA Ref *******
APCOA Parking PCN no *******
Dear Sir or Madam,

A notice to keeper was issued on 29th March 2018 and received by me, the registered keeper of ****** on 4th April 2018 for an alleged contravention of !!!8216;BREACH OF THE TERMS AND CONDITIONS OF USE!!!8217;!!!8217; at ***** on 19th March 2018. 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) Payment was made for the period of parking.
2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
3) 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)
4) No landowner contract nor legal standing to form contracts or charge drivers

1) The driver of the vehicle at the time of the alleged contravention assures me that immediately prior to exiting the car park a payment was made with the vehicle!!!8217;s registration mark being entered into the payment machine and an image of my vehicle being displayed on screen before paying and a receipt being issued. There is an additional witness to this fact. It was memorable given that this is the first time my vehicle has parked at this site since its management was taken over by APCOA and their ANPR system.
If APCOA wish to pursue me for non-payment, the burden of proof rests with them to demonstrate their database does not contain a matching payment for my vehicle within the grace period prior to my vehicle exiting the car park at approximately 17:29 on 19/03/18.
I suggest this could be easily confirmed by making available the relevant sections of their database for independent scrutiny by a knowledgeable person if indeed no payment was made. APCOA simply claiming they do not have a record is not sufficient evidence.
2) 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 19th March 2018, and the notice to keeper was received 16 days later on 4th April 2018.

3) 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

!!!8220;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 !!!8216;reasonable presumption!!!8217; 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.

4) 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.!!!8217;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.

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


Thanks to anyone who read this far!!

Coupon-mad

Add in the new one about breach of the ICO Surveillance Camera Code of Practice

Search for those words and to narrow it further, add the word POPLA to the search.

nickysantanov

Coupon-mad wrote: »

Add in the new one about breach of the ICO Surveillance Camera Code of Practice

Search for those words and to narrow it further, add the word POPLA to the search.

Well, it's taken almost 6 weeks since I submitted my POPLA appeal. The operator appeared to take about 3 and a bit weeks to 'submit their supporting evidence' and it was with POPLA for another fortnight or so, but today I received the excellent news that my appeal was SUCCESSFUL!


Assessor summary of operator case
The operator has failed to provide any evidence in relation to this Parking Charge Notice (PCN).


So, APCOA didn't even bother submitting evidence... just tried to drag it out, presumably in the hope that I'd withdraw the appeal.


Anyway, thanks again to those who've commented in support of my query. It's really appreciated.