APCOA PCN railway station

Coupon-mad

In the meanwhile it's "Carry on regardless, lads....... let's trouser as much as we can while the sun shines!"

A shocking approach to business.

People who are that mercenary should not be trading, don't you agree?

rachity

Coupon-mad wrote: »

A shocking approach to business.

People who are that mercenary should not be trading, don't you agree?

Couldn't agree more, Coupon-mad. :T

Parkingposter

Hello

As expected, APCOA rejected the initial appeal.
I have drafted an appeal for POPLA using a combination of threads on here (thank you to those who i have taken wording from) and looking at the BPA code of conduct etc.

I would be very grateful if someone could look over the appeal and let me know if there is anything I should add, remove or amend.

There are multiple PCNs unfortunately - presumably I should submit each appeal on a separate day if possible, or is it ok to do them all separately, but at the same time do you think?

APPEAL WORDING

I am appealing as registered keeper of the vehicle XXX against PCN XXX for the following reasons:

1. The car park at Great Missenden Station is subject to Railway Byelaws and is not considered ‘relevant land’ for transfer of liability from a driver to a keeper
2. APCOA are not entitled to claim under Railway Byelaws, nor have they followed correct procedures if they were entitled to do so.
3. A compliant Notice to Keeper was never served and therefore there can be no keeper liability
4. APCOA has not shown that the individual who they are pursuing is in fact the driver who may have been potentially liable for the charge
5. The car park had unclear, non-obvious, non-BPA-compliant signage leading to the driver not being aware that a parking contract was being offered at the time
6. No evidence of Landowner Authority
7. APCOA has not shown evidence that the current ANPR system is reliable, accurate or maintained and there appears to be no human oversight /quality check over ANPR PCN issuance




1. The car park at Great Missenden Station is subject to Railway Byelaws and is not considered ‘relevant land’ for transfer of liability from a driver to a keeper

The car park at Great Missenden Station is railway land, and is therefore subject to Railway Byelaws (as confirmed in a conversation with the station attendant at Great Missenden Station). As the Protections of Freedom (PoFA) 2012 Act does not apply on railway land as it is considered ‘not relevant land’, and there can be no transfer of liability from the driver at the time to the keeper.

2. APCOA are not entitled to claim under Railway Byelaws, nor have they followed correct procedures if they were entitled to do so.
By claiming the 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.
Furthermore, POPLA guidance issued in 2018 with regard to penalty notices issued under Railway Byelaws, states several expectations of a penalty notice that have not been followed in this instance. For example:
- A Penalty Notice (PN) should say it is a penalty notice
- A PN should confirm how the byelaws were brought to the motorist’s attention
- A PN should confirm the law under which it has been issued
- A PN should not use the words ‘parking charge notice’
POPLA also notes that the timescales of PoFA 2012 should be followed for penalties issued on railway land, ie issued via post in the period of 14 days beginning with the day after the day after that on which the specified period of parking ended. As noted above, this notice to keeper was sent outside of this period.

3. The Notice to Keeper is not PoFA compliant.
Signs in the car park in question state that the operator reserves the right to apply to the DVLA for keeper details, thus implying APCOA adheres to PoFA keeper liability. However, even if the land in question was considered relevant land, the parking charge notice does not comply with the strict requirements of Schedule 4 of PoFA 2012 to be followed in order for a parking operator to be able to claim unpaid parking charges from a vehicle’s keeper. Under schedule 4, paragraph 4 of the PoFA 2012, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met. Specifically, paragraph 6 (1) states:
6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b)has given a notice to keeper in accordance with paragraph 9.
Paragraph 9 is the relevant paragraph here as the NTK was sent by post.

Paragraph 9 (2f) states that the NTK must:
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;
The NTK sent to me as registered keeper does not give any such warning, nor state any such right to recover charges from the keeper.
In addition, Paragraph 9 (4) of the PoFA 2012 states that:
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
The relevant section here is b) as the NTK was sent by post. Paragraph 9 (5) states that:
(5)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.
This NTK was sent to me as registered keeper X days after the alleged event -see the attached photo of the NTK from APCOA with the ‘Date of event’ of X and the ‘Date Issued’ of X. Therefore there can be no POFA keeper liability.

4. APCOA has not shown that the individual who they are pursuing is in fact the driver who may have been potentially liable for the charge
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. In this case, no other party apart from an evidenced driver can be told to pay. 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 Notice to Keeper.
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. The burden of proof rests with the Operator 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 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 said:
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 cannot transfer the liability for the charge using the PoFA Act 2012.

5. Signage - The car park had unclear, non-obvious, non-BPA-compliant signage, so any driver would not be aware that a parking contract was being offered at the time
Section 18 of BPA Code of Practice sets out expectations for entrance and other signage. The 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. 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 so there was no consideration or acceptance and no contract agreed between the parties.
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.

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 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.

So, for this appeal, I put APCOA to strict proof of where the car drove into the car park 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. It is rather interesting in APCOA’s response that the pictures that came with the notice had no site entrance photos and very little can be seen other than car headlights.
Please refer to the photographic evidence below, which demonstrates how inadequate the signage is at this car park:
Photo A: Parking signs are positioned high off the ground, making the wording difficult to read, particularly for disabled visitors. This is in contravention of BPA CoP 18.9 – “there must be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle”
PHOTO A

Photo B: Signs are not illuminated under conditions of darkness, which it would have been at the time of entry according to the PCN, and are therefore illegible
PHOTO B

Photo C: Some signs at the car park have important information removed
PHOTO C
Photos D & E: Signage is not well kept, as evidenced by this sign near the car park entrance facing a fence and therefore illegible to any person, whether in a car or on foot

PHOTO D PHOTO E
Photo F, G & H: ANPR/CCTV signs with no mention of the use that data collected via ANPR will be put to (as per BPA code of practice 21.1)

PHOTO F (“24hr CCTV”) PHOTO G PHOTO H

6. No evidence of Landowner Authority has been provided
As APCOA does not have proprietary interest in the land then I 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 APCOA 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 Parking Charge 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).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Section 7 of the British Parking Association (BPA) Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance.

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.

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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.

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 Train Operating Company (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 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. 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.

7. APCOA has not shown evidence that the current ANPR system is reliable, accurate or maintained and there appears to be no human oversight / quality check over ANPR PCN issuance

There is no evidence provided that APCOA have signed up to the Surveillance Camera Commissioner’s Code of Practice (BPA CoP 21.5).
APCOA have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.

It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Additionally, under section 21 of the CoP, before operators issue a parking charge notice they must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
There appears not to be any human intervention in this case or cross reference to tickets purchased in the day in question.

APCOA has not provided any evidence to show that their system is reliable, accurate or maintained. In addition, photos F, G and H show that the signage does not state what the data collected via ANPR will be used for (BPA CoP 21.1).

Therefore, for the above reasons, I ask as keeper of vehicle OV65 PLF that my appeal is upheld and PCN XXX cancelled.

Coupon-mad

There are multiple PCNs unfortunately - presumably I should submit each appeal on a separate day if possible, or is it ok to do them all separately, but at the same time do you think?

I would do them all on the same day, duplicate appeal wording and watch APCOA's PCNs fall like dominoes.

That POPLA appeal will win. Good research.

Parkingposter

I am delighted to update that all 4 POPLA appeals have been successful as APCOA did not wish to contest them.
Thanks again for all the support offered on this forum, it is much appreciated.

Redx

Not surprising, but we'll done anyway for following our advice

Shows what a scam it is

Umkomaas

I am delighted to update that all 4 POPLA appeals have been successful as APCOA did not wish to contest them.

They never do. They have no idea how to respond to a forum-led appeal. Nonetheless they waste your time and ours.

If you're feeling particularly arsey, you could issue them with a Letter of Claim for wasting your time - #hours x £19 - and see how they react. If they don't settle, you can go via Money Claim on Line (MCOL) and issue a court claim for a £25 fee, and if they don't defend that, you will get a judgment in default in your favour for the claim amount, and they will get a CCJ to deal with.

Well done on blowing them into the dust! :T