Airport POPLA appeal APCOA

maceson

Hey guys.

Just want to thank everyone for sharing such helpful information, I have drafted my POPLA appeal below and just wanted to confirm all is okay before I send it off.

I recieved a PCN from APCOA for dropping off or picking up outside designated areas. I replied a basic appeal knowing that APCOA doesn't usually drop the charges on their internal appeal systems.

I received this reply

Thank you for your appeal received 19 June 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 Luton Airport. Having investigated further, we
have found that your vehicle was pictured in breach of the above terms set by Luton Airport, picking up outside of a
designated parking area, having failed to enter the designated pickup and drop off zone or short term car park.
All restricted areas are signposted and clearly state that no stopping is allowed at any time to drop off, pick up or for any
other reason. CCTV and number plate recognition is in operation. Anyone in contravention of this restriction will be liable for
a parking charge notice of up to £80.00.There is a £3.00 Drop off Zone in place at Luton Airport. This was introduced to
ease traffic congestion at the terminal. We do however offer free parking at the Mid Term car park for up to 30 minutes.
Restrictions in place at Luton Airport do not allow passengers to enter or exit the vehicle when on the approach roads or
roundabout; even in the event of a forced stop due to traffic. This rule has been enforced to ensure the safety for pedestrians
and drivers around Luton Airport, as well as to maintaining the traffic flow.
Recently, the Court of Appeal unanimously dismissed the case of Beavis vs. Parking Eye [2015]. This case considered two
key arguments: (a) whether a Parking Charge for contravention of the parking conditions is unenforceable at common law
because it is a penalty; and (b) whether it is unfair and therefore unenforceable by virtue of the Unfair
Terms in Consumer Contracts Regulations 1999.
The judges ruled that the Parking Charge Notice that Mr Beavis had received from Parking Eye for overstaying a two-hour
limit "is not extravagant or unconscionable". They added that the terms and conditions of a car park should “provide a
disincentive to drivers which will make them tend to comply”, and that this is afforded by the Parking Charge Notice of
£85.00. The Judges went on to say that the charge was justifiable by “a combination of factors, social as well as
commercial”.
The guidelines issued by the British Parking Association make clear that they ‘would not expect this amount to be more than
£100.” We therefore believe that this parking charge is fair and reasonable at £80 reduced to £48 if paid within 14 days.
This sum has been approved and agreed by the landowner.
Luton Airport is a private property of London Luton Airport all the enforcement are 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 London Luton Airport. Any vehicles in contravention of the T&C of the Luton 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.
APCOA have not claimed to, and do not work, issue or seek payment under POFA as this land is covered by Bye-laws.
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 (Luton 3.6 (c) 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


Below is my drafted appeal to POPLA and just wanted to check it is all okay

POPLA Ref x
APCOA Parking PCN no x

A notice to keeper was issued on 16th May 2019 and received by me (the registered keeper) of vehicle registration x on 17th June 2018 for an alleged contravention of ‘Dropping Off or picking up outside designated areas’. 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) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012
2) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)
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) Misleading and unclear signage
5) Reasonable cause for requesting keeper details from DVLA
6) No landowner contract nor legal standing to form contracts or charge drivers
7) Photo Evidence appears doctored
8) No Grace Period Given (Clause #13 BPA Code of Practice)

1) APCOA has indicated on appeal that the notice was not issued under POFA 2012 and therefore the Keeper Liability provisions of Schedule 4 of POFA 2012 are not applicable on this occasion.
If APCOA were 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 car park where the parking event took place, the 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 16th June 2018, and the notice to keeper was received 34 days later on 20th July 2018.

2) Airport land is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability' sub-section under Schedule 4 of the Protection of Freedoms Act 2012. Therefore as 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 and/or other statutory instruments.

As POPLA assessor Steve Macallan found in case 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012. He stated ‘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) 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 2 above.

4) The alleged contravention, according to APCOA, is in 'breach of the terms and conditions of use of the car park infrastructure and signs are clearly displayed'. It appears that signage at this location does not comply with road traffic regulations or their permitted variations and, as such, are misleading, as they are unable to be seen and assimilated by a driver 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 safely 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.''
There appear to be no readable or even visible detailed Terms and Conditions parking signs (Section 18.3 of the BPA Code of Practice), especially not from a moving vehicle. The Car Park Regulations section (section 1.8) of the ‘Car park booking and use terms and conditions’ displayed on the Luton Airport official web-site make no reference to picking-up or dropping-off regulations.
Finally, the time the vehicle was allegedly stopped, as indicated by the images supplied by Apcoa, is no more than 8 seconds.

5) 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.

6) 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.

7) I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and lack of location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on-top of the photographs in the upper right hand corner. It is well within the realms of possibility for even an amateur to use 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 (See <Daily Mail Article on UKPC doctoring photos> for more information).
I would challenge APCOA Parking Ltd 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 Parking Ltd that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such a way (there are much more sophisticated ways of hardcoding photo data).
Nevertheless, I challenge APCOA LTD to prove to POPLA that the CCTV and ANPR equipment that was specifically used for the alleged contravention are:

• Fit for purpose: approved technical design to comply with the relevant requirements and Acts of Parliament;
• Calibrated: calibration certificates for all components to be made available to POPLA to confirm they are current and relevant;
• Operator competency: Operator is competent and trained to use the equipment and also that the operator on the day was competent and converse with the Data Protection Act.
• The CCTV vehicle used (I as a registered keeper found this through research and noticed when travelling form the Airport) has a type approval and safety certification to be legally placed on a public road including certificates, MOT and other relevant documentation to show compliance with legal requirements after the modifications (installation of a high periscope type structure to mount a camera). Also a proof that the vehicle is exempt from the very same “terms and conditions” for parking outside designated areas, as numerous travels to the airport as passenger show the vehicle parked on public road with no warning or safety barriers.

8) 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.’

Given the above points of ambiguous signage, including mixed fonts and images, it is unreasonable to expect a driver to be able to read the entire signage whilst driving. Therefore, if a driver stops for a brief moment to read a sign, they MUST have the opportunity to leave and not accept the terms of an alleged ‘contract’. 8 seconds I would argue does not constitute a fair ‘grace period’, and therefore APCOA are in breach of the BPA Code of Practice.

In summary, these points demonstrate the claim by APCOA Parking (UK) Ltd is invalid and that my representation should lead to POPLA cancelling the APCOA Ltd demand to me, the Registered Keeper.

Many thanks!

Redx

Seems to have all the relevant points seen in previous apcoa popla appeals for Luton airport, so well done on your research

Expect apcoa to throw in the towel as soon as they see it

Coupon-mad

Your dates are all odd, is that deliberate, for privacy?

Umkomaas

That POPLA appeal's basic size will totally faze APCOA and they will withdraw and avoid paying the POPLA fee.

They're either intellectually challenged, have no idea what they're doing, know they're going to lose, or basically just tight gits!

In many respects it seems it doesn't matter too much what's included in the appeal, almost a case of 'never mind the quality, feel the width' - for a guaranteed win.

KeithP

@maceson, what happened here?

Umkomaas

KeithP said:

@maceson, what happened here?

Well wadya know. Can't be bothered to update those who gave freely of their time to help them previously ..... but now they've got another problem, they're back.  I won't get caught twice. 

'I'm alright Jack, eff the rest of you' can be a two-way street!

maceson

I won the POPLA @KeithP and really appreciate the guidance from the other members. @Umkomaas nobody asked for an update or I would have done so! 

Umkomaas

maceson said:

I won the POPLA @KeithP and really appreciate the guidance from the other members. @Umkomaas nobody asked for an update or I would have done so! 

We're dealing with thousands of different cases which slide rapidly down the forum and out of sight if there's no inputs. It's just basic etiquette to inform those who have given freely of their own time to a stranger, to help them with their problem, the results of their efforts.  It just wraps up the specific thread, and any newbie who stumbles across it in the future will see how it has unfurled, learned from it and may not then feel the need to add further pressure on the overstretched forum, because the way forward is clearly illuminated. 

That's about it, simple courtesy. 

maceson

OK @Umkomaas, I understand your point. Apologies.

Coupon-mad

Well done though!  When cases are won at POPLA it's good to update the POPLA Decisions thread at the top of the forum.

And this weekend: An urgent task – deadline is MONDAY NIGHT - 24 HOURS!

Please now make a real difference because not enough people have yet, and time is running out. 

The Government is consulting for just a few more days, about a new statutory code of practice (CoP) and framework intended to rein in the rogue parking firms. 

Does it go far enough?  Read and comment on the draft CoP proposal and the enforcement framework consultation (two separate consultation documents).

HOW TO DO THE SUBMISSIONS:

BSI PAS 232 – COMMENTING ON THE CODE OF PRACTICE AS DRAFTED :

1.    You will need to register then log in, to comment on the CoP and enter an occupation even if you are retired or a homemaker.  

 

2.    Register, log into the BSI page, and download & read the cover letter here:

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

 

3.    Read the cover letter again and note the suggested extra questions... if you agree that, say, the 'loading/unloading and dropping off, asking for directions, and disabled people parking on double yellows as they can on street' activities listed should be exempt (not parking events, what do you think?) then please go to the Annexes at the end of the PAS Code and find the one about Exempt Vehicles and state what other activity you think should be added to the exempt list. 

 

4.    Download the PAS itself and start commenting on what you wish to say something about.  Quick links to each section appear on the left of your page. 

 

You don’t have to comment on everything, e.g. you might want to skip the definitions and focus on later sections, and certainly look at the Annex tables at the end that show things like consideration & grace periods and exemptions.

 

5.    Submit comments when you are happy with them. Don’t just ‘SAVE’ and forget!

 

THAT IS HALF THE JOB DONE!

THE MHCLG CONSULTATION IS EASIER AS IT IS JUST A LIST OF QUESTIONS. 

 

6.    You can do it first if preferred or pushed for time:

https://forms.office.com/Pages/ResponsePage.aspx?id=EGg0v32c3kOociSi7zmVqAVPfAOtwRxLhHRwQ610oElUMzhQSVo0WUQ4SERVSEZaUU9DTUhFQ1VMUy4u

If your answers exceed 4000 characters (approx. 500 words to a single question or 16000 words (approx. 2500 words) for all the questions below, you can email your answers to parking@communities.gov.uk as long as you state who you are.

 

 

THESE ARE THE QUESTIONS YOU WILL SEE, FOR RESPONSES TO THE FRAMEWORK:

Q1 Do you agree or disagree that members of APAs should be required to use a single appeals service appointed by the Secretary of State?

Strongly agree/Somewhat agree/Neither agree nor disagree/Somewhat disagree/Strongly disagree

 

Q1.1 Please explain your answer

(free text)

 

 

Q2 Please provide any other feedback on the determination of appeals, including the funding model and features that an appeal service should offer e.g. telephone or in-person hearings, the ability to submit evidence online

(free text)

 

Q3 Please provide any comments you have on the proposal to enforce the Code by combining the ATA’s existing audit procedures with additional safeguards.

(free text)

 

Q4 Please outline any alternative means by which the Code could be monitored and enforced. You may wish to cite evidence from other regulatory frameworks which are relevant.

(free text)

 

Q5 Please provide any feedback you have on the proposed governance arrangements for monitoring the new Code of Practice

(free text)

 

Q6 Which parking charge system is most appropriate for private parking?

 a) the Three-tiered system

 b) Mirroring the Local Authority system

(free text)

 

 Q6.1 Please explain your answer. You may, for example, wish to make reference to other deterrent frameworks (for example, for railway tickets or traffic violations)

(free text)

 

 

Q7 What level of discount is appropriate:

40% as is currently offered in private parking and suggested in the three-tiered system, or

50% as is offered in Local Authority parking?

a) 40%

b) 50%

 

Q7.1 Please explain your answer, including whether the discount should be set at a different level

(free text)

 

 

 Q8 How should the level of parking charges be set and how should the levels be revised in future?

(free text)

 

 

Q9 Do you agree or disagree in principle with the idea of the Appeals Charter?

Agree/Disagree

 

Q9.1 Please explain your answer

(free text)

 

 

Q10 Do you agree or not that the examples given in the Appeals Charter are fair and appropriate? Agree/Disagree

 

Q10.1 Please explain your answer.

You may wish, for example, to suggest additional cases to be covered in an Appeals Charter or query existing examples.

(free text)

 

Q11 Do you agree or disagree that the parking industry should contribute towards the cost of the regulation?

Agree/Disagree

 

Q11.1 Please explain your answer.

(free text)

 

YOU CAN INSTEAD GIVE MORE CONCISE ANSWERS ONLINE, USING THE MHCLG PAGE LINK.

Don’t forget that answering these questions is the easier bit…

Looking at the BSI PAS (the draft code of practice itself) involves logging in and submitting comments again, and again and again and takes more time!

There is a discussion about PAS submissions and what the pages look like, here:

https://forums.moneysavingexpert.com/discussion/6195417/am-i-doing-something-wrong/p1