Adding to the NEWBIES template APCOA

ParkingatBrum

Hi All, I have read the NEWBIES post with regards to appealing a PCN at Birmingham Airport Pick/Up Drop of Zone outside the Ibis hotel.

I have 2 extra pieces of evidence I would like to add to the standard template and wondered if someone would kindly read and sense check what I have put - I do not want to tie myself up in knots!

- In order to resolve the dispute, I have attached proof of stay at the hotel relevant to the date of the alleged offence, to show the vehicle was in the intended area for hotel drop off/pick up only. A person can be seen entering the car in the images supplied.

- The date of the alleged offence has been recorded as the 28/12/18. Under section 9 of the Protection of Freedoms Act 2012 (5) the notice was issued on the 17/01/19, breaching the allotted time frame.

Will this help my appeal or am I just making hard work for myself - should I stick with the template provided?

Coupon-mad

Up to you. I wouldn't.

APCOA PCNs = 100% win every time for posters here, just by using the template, then copying a standard APCOA Airport POPLA appeal. Job done! All by templates, guaranteed.

What you have said does not cause a problem as long as the name on the Hotel booking is not the name of the keeper...which could be implied to be blabbing who was driving, especially if only one person is seen in the images...

Maybe digging a hole for the appellant? Hence, I would say leave it out.

Also because APCOA won't care, it won't change things and POPLA will be needed. You do not even need the bit about the POFA as they have not issued a POFA Notice anyway.

waamo

Do you mean you want to alter the template that is says to send unaltered?

It's designed so you don't drop yourself in it. If you want to risk it by adding bits it's your call.

I hate to say but they will likely reject it no matter what you put.

The_Deep

I agree with CM and waamo, your suggestion is too specif for general use. but by all means include it in your own piece. Have you seen this?

The whole industry is a scam, relying on threats of court, and public ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

ParkingatBrum

Thanks for the replies all.

The Hotel booking is in a different name to the registered keeper, however I shall omit this information unless needed in the future, and will keep with the standard notice as set out in thew NEWBIES section :beer:

waamo

It may well come in useful for a POPLA appeal. Get reading up about the next stage at POPLA and await your code.

ParkingatBrum

Surprise Surprise, my appeal was rejected on the following points, I will set out in my next post what I believe is an acceptable reply.

Thank you for your appeal received 21 January 2019 against the above Parking Charge Notice. Having carefully considered the evidence provided by you, we must advise your appeal has been unsuccessful on this occasion.

You were issued a notice having received an allegation of contravention at Birmingham International Airport. Having investigated further, we have found that your vehicle was pictured in breach of the above terms set by Birmingham International Airport, parked in the hotel drop off lay-by, having failed to enter the designated pickup and drop off zone or mid term car park. The lay-by outside the hotel is clearly designated as “hotel drop off only”. As shown in the images below, the passengers being picked up does not appear to have left the hotel.

APCOA have not claimed to, and do not work, issue or seek payment under POFA as this land is covered by Bye-laws.

All the enforcement is carried out according to British parking association (BPA) guidelines and APCOA being an approved operator of BPA is authorized to manage and enforce the property on behalf of Birmingham International Airport. Any vehicles in contravention of the T&C of the Birmingham International Airport are sent out to DVLA for registered owner’s information under BPA guidelines.

Please note as the registered keeper of this vehicle, you are liable for this ticket, unless details of the driver are provided.

The Grace Period is not applicable as the person was not in a car park but was on a road way that is regulated under the Airport’s Byelaws which clearly state that Birmingham 5(2); 5(3) &/or 5(4)) vehicles should not be parked on roadways that are on the Airport Land. The driver entered onto private land freely and in full acceptance of the terms of parking clearly displayed. Terms and conditions are offered; and by remaining onsite, these are accepted.
As your vehicle was parked in contravention of the terms and conditions of the site we are satisfied that the notice was correctly issued in accordance with the BPA code of practice, and therefore not able to waiver the charge on this occasion.

Therefore you now have a number of options:
Pay the Parking Charge Notice at the discounted price of £50 within 14 days. Please note that after this time the Parking Charge Notice will increase to £100.

waamo

You have a winner at POPLA. Not relevant land. They can't transfer liability to the keeper. Easy win.

ParkingatBrum

I have drafted up a response below, using my own evidence which will be supplied for POINT ONE (is this necessary?), and a combination of the below.

An exert of this excellent appeal, as I believe I have a golden ticket POINT TWO
found by searching "Holy Trinity Church Newquay" and posted by TalkGirl_uk (I am unable to post links).

The rest being the same as the excellent appeal found by searching for "Apcoa parking notice" and posted by Kitty25.

POPLA Ref ...................
APCOA Parking PCN no .......................

A notice to keeper was issued on 17th January 2019 and received by me, the registered keeper of ........ on 21st January 2019 for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at Birmingham Airport. 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) Correct usage of the area as set out by APCOA PARKING themselves.
2) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)
3) APCOA not using POFA 2012
4) Airport Act 1986
5) Amount demanded is a penalty
6) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
7) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
8) 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)
9) Misleading and unclear signage
10) No landowner contract nor legal standing to form contracts or charge drivers
11) Photo evidence appears doctored
12) No Grace Period Given (Clause #13 BPA Code of Practice)

1) According to APCOA, “The lay-by outside the hotel is clearly designated as “Hotel drop-off only”. I have been provided evidence (from the party pictured in the CCTV images) of a hotel stay on the date of the alleged offence. It is fair to assume the vehicle has been used to drop off and there for the area has been used correctly. INSERT INVOICE HERE

2) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)

To support this claim further the following areas of dispute are raised:
• The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
• The Notice to Keeper does not warn the keeper that, if after a period of 28 days, APCOA PARKING. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on Friday 28th December 2018. The relevant period is therefore the 14 day period from Saturday 29th December 2018 to Friday 11th January 2019 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is Thursday 17th January and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Monday 21st January 2019 (i.e. outside of the relevant period).

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, APCOA PARKING has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
The notice must be given by—
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Upon reviewing the NTK, APCOA PARKING have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

3) 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.

4) Airport byelaws do 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 that byelaws only apply to roads to which road traffic enactments do not apply

5) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

6) 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 2nd September 2016, and the notice to keeper was received 21 days later on 23rd September 2016.

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.

7) 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.
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.’

8) 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 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.

9) 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, 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."

10) 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 APCOAParking Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

11) 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 even been in use by UKPC, who were banned by the DVLA after it emerged.

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).

12) 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 therefore request that POPLA uphold my appeal and cancel this PCN.

waamo

Points 1-6 are pretty irrelevant to be honest. They aren't relying on POFA so the notice doesn't need to comply. For belt and braces you can put that at the end.

The point about being a penalty is wholly irrelevant.

The rest will win it for you.

ParkingatBrum

Thankyou for looking over that, I shall omit points 1-6 and just use the other points mentioned :beer: